Court File and Parties
COURT FILE NO.: CV 22-00089691-0000 DATE: June 2, 2023
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
S.B. Appellant – and – Dr. Neil de Laplante Respondent
Counsel: Michael Davies, for the Appellant Hilary Chung, for Respondent.
HEARD: April 12, 2023
Reasons for decision Justice K.A. Jensen
Introduction
[1] S.B. has Huntington's disease, which is a progressive neurological disorder that affects his cognitive abilities, among other functions. On July 29, 2021, the Respondent, Dr. Neil de Laplante found S.B. incapable of managing his property under the provisions of the Mental Health Act. S.B. challenged that determination, but it was upheld by the Consent and Capacity Board (the Board) following a hearing on September 3, 2021.
[2] On May 31, 2022, the Board's determination of incapacity to manage property was confirmed by the Respondent, prior to S.B.'s release to a residence in the community. S.B. challenged that determination, but it was upheld by the Board on June 22, 2022, with reasons released on July 8, 2022.
[3] S.B. has appealed the Board's decision of June 22, 2022, pursuant to s. 80 of the Health Care and Consent Act, 1996 (HCCA).
[4] For the reasons that follow, the appeal is dismissed.
Factual Background
[5] S.B. is a 44 year old university-educated man. Before developing Huntington's Disease in 2009 or 2010, S.B. had his own insurance business, and earned a very good living. He owned a beautiful home in Ottawa with his wife. Together they had a son.
[6] Fortunately, S.B. had the foresight to take out disability insurance prior to developing Huntington's. In 2018, he went on long term disability. He now receives a disability pension of almost $10,000 per month, tax free. S.B. has assets and savings that are worth over a million dollars. He also has debts and expenses that are not insignificant.
[7] After being diagnosed with Huntington's, S.B. designated his mother to act as his attorney for property.
[8] Sadly, S.B.'s marriage ended in around 2018 because of his increasingly erratic behaviour. He was repeatedly charged with offences related to harassing his ex-wife and problematic consumption of alcohol.
[9] S.B.'s Huntington's condition is deteriorating. Huntington's is a progressive neurodegenerative disease characterized by progressive symptoms of decline in the motor, behavioural and cognitive spheres. S.B. has a primary behavioural variant of the neurodegenerative disease, for which there is no specific treatment or cure.
[10] After a recurrent pattern of release and reoffending, S.B. was found Not Criminally Responsible (NCR) in 2021 because of cognitive changes resulting from his Huntington's disease.
[11] S.B. was admitted to the Rehabilitation Unit of the Forensic Department at the Royal Ottawa Mental Health Centre. The Respondent, Dr. Neil de Laplante, became his doctor.
[12] On July 29, 2021, Dr. de Laplante found S.B. incapable of managing his property. S.B. challenged this finding of incapacity, which was upheld by the Consent and Capacity Board ("the Board") following a hearing on September 3, 2021. His mother then became his substitute decision maker, pursuant to a Power of Attorney ("POA") and subsequently sold S.B.'s home. His mother remains his Power of Attorney for finances.
[13] In 2022, S.B. was to be released to the Lord Landsdowne Residence in Ottawa, although he was still subject to a detention order. Prior to his discharge on May 31, 2022, Dr. de Laplante confirmed the previous finding that S.B. did not have capacity to manage his property and completed a Form 24 (Notice of Continuance of Certificate of Incapacity to Manage Property).
[14] S.B. was discharged from the Royal Ottawa to the Lord Landsdowne Residence on May 31, 2022.
[15] S.B. challenged Dr. de Laplante's confirmation of incapacity. The Board convened a hearing on June 22, 2022, with respect to Dr. de Laplante's finding of incapacity to manage property. At the hearing, the Board considered the Form 24 and a clinical summary prepared by Dr. de Laplante for the hearing. The Board also heard oral evidence from Dr. de Laplante and S.B.
The Consent and Capacity Board Hearing
Dr. de Laplante's Evidence
[16] Dr. de Laplante testified that S.B. has severe cognitive deficits which, had they been present from birth, would have been diagnosed as an intellectual disability, especially in the areas of working memory and executive functioning. In certain cognitive domains, S.B. is in the "extremely low range" which is "the first percentile or lower." These cognitive deficits have a major impact on his ability to live day to day and specifically to manage his finances. Although he can speak in a general sense about his income and expenses, he has a great difficulty applying the information or doing even the most basic calculations. These deficits are permanent and an anticipated consequence of Huntington's.
[17] Prior to his NCR finding, when he was in control of his own finances, S.B. went through a period of excessive spending and built-up significant debt. The original finding of incapacity was made following several months of observation as an inpatient and working with an occupational therapist on the forensic unit following his NCR finding. That finding was renewed on discharge.
[18] At the time of the hearing, S.B. had been discharged for about three weeks. The doctor was concerned that even in that short time and with his mother as power of attorney, there had been financial issues. There were several "questionable charges" on his credit card, including a $100 purchase at the LCBO for a fellow patient. The doctor believed that the fellow patient had been exploiting S.B. S.B.'s credit card was subsequently stolen. In the doctor's view, if S.B. managed his own finances, he would be open to greater exploitation and extremely poor management of his finances. This could result in him losing his current residence and being re-hospitalized.
[19] During his cross-examination, Dr. de Laplante was challenged for relying on S.B.'s financial capacities prior to his admission to hospital following the NCR verdict and relying on dated testing. The doctor agreed that he had not specifically re-tested for cognitive deficits. He intended to do such testing later in the year but in the doctor's view, Huntington's is a one way decline in cognitive functioning and re-testing would simply monitor that decline.
[20] The doctor pointed to S.B.'s recent inability to calculate a 15% tip on takeout food and had to ask others to do it for him.
[21] Dr. de Laplante acknowledged that a "confounding factor" for the period in which S.B. was not paying his bills prior to admission was that he was drinking very heavily.
[22] The doctor also acknowledged that S.B. understands the basic nature of financial transactions and could certainly deal with such transactions on a retail level but may struggle with managing investments or his retirement savings because they are more abstract.
[23] In questioning from the Board, Dr. de Laplante agreed that S.B. is subject to a detention order from the Ontario Review Board and that he has no choice in where he lives. He can only reside at the hospital or in accommodation approved by the hospital. He is also prohibited from drinking alcohol. Whether he is financially capable or not he has to follow these conditions imposed by the Ontario Review Board.
[24] According to Dr. de Laplante, between March 2020 and October 2020, when S.B. controlled his own finances, he missed mortgage, vehicle, and insurance payments. His car insurance policy was cancelled, and his mortgage sent into collection. Despite having more than $4,000 per month from disability income, net of housing and transportation expenses, S.B. had accumulated about $26,000 in credit card debt during the period between March 2020 and October 2020.
S.B.'s Testimony
[25] S.B. testified that he has been able to manage his weekly allowance given by his mother in the form of cash and visas with "no problem at all, very easily". He stated that he ran his business for twelve years and that his ability to manage money "on a high, high, high level, ha[d] not changed in any capacity whatsoever."
[26] When asked about concerns that an individual was exploiting him financially, S.B. stated that it was his choice to take the individual out for lunch, and it was his choice to "financially make an investment" in him. He also indicated that he purchased alcohol for the individual.
[27] S.B. correctly answered a question by his counsel as to what a 15% tip on $100 would be. S.B. also described how he would pay bills and stated that he has never bounced a payment. S.B. also described the difference between a chequing account and a savings account and stated that if he was presented with a large sum of money, he would invest it in mutual funds.
[28] When asked in cross-examination why he was no longer able to manage his business, S.B. replied that it seemed to be a little bit more difficult, but with hindsight, he would go back to managing his business tomorrow.
[29] On cross-examination, S.B. acknowledged memory lapses but stated that his Huntington's was not nearly as bad as Dr. de Laplante thought it was. S.B. stated, "I know what to expect when it comes to Huntington's more so than any doctor or anybody else for that matter." He also stated that Huntington's has not limited him when it comes to his finances.
[30] S.B. stated that if he had access to money, he would buy a house since it is better than spending $5,800 a month to live in a retirement home. He also stated that his mother was excited for him to get his competency back because it would likely give him the ability to buy a house and she was very excited at that notion.
[31] In contrast, Dr. de Laplante testified that S.B.'s mother was quite concerned about the possibility that he would regain control of his finances.
The Board's Decision
[32] The Board set out the two part test for capacity to manage property as found in s. 6 of the Substitute Decisions Act (SDA). The first question is whether the person is able to understand information that is relevant to making a decision in the management of his or her own property. The second question is whether the person is able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[33] On the first part of the test, the Board found that S.B. still had the cognitive ability to process and retain basic information about finances, and as such, the presiding member found that S.B. had the ability to understand the information relevant to management of property.
[34] However, with regard to the second branch of the test, the Board found that S.B. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding the management of his property.
[35] The Board set out the relevant evidence provided by both S.B. and Dr. de Laplante. That evidence included Dr. de Laplante's concerns that S.B.'s judgment about finances was limited and that if he had control of his assets, he would likely revoke the POA. He would then likely be financially exploited by others.
[36] The Board found that S.B. did not believe that any of his financial decision-making was negatively impacted by the Huntington's. S.B. was unable to see or acknowledge any possible connection between the disease and the previous financial issues he suffered.
[37] On the basis of all the evidence, the presiding member found that at the time of the hearing S.B. was unable to appreciate the reasonably foreseeable consequences of managing his property.
The Issues in the Present Appeal
[38] The issues in the present appeal are as follows: (a) What is the standard of review for the present appeal? (b) Does the existence of a power of attorney nullify the Board's capacity assessment? (c) Did the Board make a palpable and overriding error in determining S.B.'s incapacity to manage property?
The Standard of Review for Appeals of the Board's Decision
[39] This appeal was made pursuant to s. 80 of the Health Care and Consent Act, 1996 (HCCA), which grants the right to appeal a decision of the Consent and Capacity Board to the Superior Court of Justice on a question of law or fact or both.
[40] I agree with the parties and Justice Newton in W.S. v. Dr. Bismil, 2020 ONSC 173, that post-Vavilov, the standard of review for an appeal of the Board's decisions is the appellate standard of review. This means that questions of law are to be reviewed on the standard of correctness, while questions of fact and mixed fact and law are reviewed on the standard of palpable and overriding error: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paragraph 37.
[41] The Supreme Court of Canada provided guidance on distinguishing between questions of law, questions of fact, and questions of mixed fact and law in Canada (Director of Investigation and Research) v. Southam Inc, 1 SCR 748 at paragraph 35, in the following terms: Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal test.
[42] It is rare that an extricable question of law will emerge from the factual matrix as an issue to be determined on the basis of the correctness standard of review: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, at paragraph 55. In fact, the Supreme Court of Canada has expressly cautioned the courts to be aware of litigants strategically obfuscating the line between a question of law and a mixed question in an attempt to gain jurisdiction in appeal: Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, at paragraph 45.
[43] In the present case, S.B. alleges that although the Board identified the correct legal test at the outset of the decision, it then changed the nature of the test when it applied the test to the facts. That is, instead of looking solely at whether S.B. demonstrated an understanding of the reasonably foreseeable consequences of a decision or lack of decision with respect to his property, the Board examined whether S.B. understood the impact of his condition on his decision-making capabilities.
[44] In Teal Cedar Products, the Supreme Court of Canada stated, at paragraph 45, that a legal test that has been altered in the course of its application is an extricable question of law. Such questions are reviewable on the standard of correctness. If, as S.B. states, the Board altered capacity test during the course of its reasons, then the decision would be reviewable on the standard of correctness.
[45] However, I find that the issue raised in this appeal is a question of mixed fact and law rather than a question of law. At its heart, the question is whether the Board properly applied the test that it correctly identified at the outset to the facts of the case. The Board may have modified the wording of the test during the course of its reasons, but a contextual analysis of the Board's reasoning leads me to conclude that it did not constrain itself to this more limited wording of the test. As such, the issue is whether the Board properly applied the test to the facts at hand. This constitutes a question of mixed fact and law, which is to be reviewed on the standard of palpable and overriding error.
[46] In Housen v. Nikolaisen, 2002 SCC 33, at paragraph 8, the Supreme Court of Canada explained that a "palpable error" is an error that is "clear to the mind or plain to see", and "so obvious that it can easily be seen or known". The Supreme Court has further held that there is no meaningful difference between the terms "clearly wrong", "unreasonable", and "palpable and overriding error": L(H) v. Canada (Attorney General), 2005 SCC 25 at paragraph 71.
[47] Therefore, the question is whether the Board's decision was clearly wrong or unreasonable.
The Existence of the Power of Attorney
[48] Under s. 54(1) of the Mental Health Act (MHA), a patient who is admitted to a psychiatric facility shall be examined forthwith by a physician to determine whether the patient is capable of managing property. The patient may also be examined from time to time for the same purpose during the course of the admission: s. 54(2) of the MHA. Where the physician finds the patient incapable to manage property, the physician must issue a certificate of incapacity (Form 21): s. 54(4) of the MHA. Where a certificate of incapacity is issued, the patient must be examined again within 21 days before discharge from the psychiatric facility, pursuant to s. 57 of the MHA. If the patient is still incapable of managing their property a notice of continuance (Form 24) is issued by the physician under s. 57(2) of the MHA.
[49] Section 54(6)(b) of the MHA prohibits the physician from determining whether a patient who has been admitted to a psychiatric facility is capable of managing their property when the physician believes, on reasonable grounds, that the patient has a continuing power of attorney that provides for the management of the patient's property.
[50] There is a long line of cases from the Board going back at least to 2004 where the Board has consistently revoked findings of incapacity to manage property by physicians under the MHA where a continuing power of attorney was in existence: Re IB, 2004 34869 (CCB); Re AR, 2012 26827 (CCB); Re MP, 2013 49067 (CCB); Re L.H., 2017 69970 (CCB); Re SS, 2020 33248 (CCB). However, those decisions relate to determinations made under s. 54 of the MHA, which are made when a patient is admitted to a psychiatric facility. The decisions do not deal with determinations made under s. 57 of the MHA, which are made 21 days before discharge from a psychiatric facility.
[51] S.B. invited this Court to find that the same policy considerations that underlie s. 54(6)(b) of the MHA also apply to determinations made under s. 57 of the MHA. The policy considerations were stated by the Board in Re SS: …the purpose of the exception outlined in section 54 was meant to ensure that a POA over property precludes a capacity assessment. A purposive reading of the legislation envisions that the POA should govern in these circumstances.
[52] S.B. states that there is no reason why the same policy considerations would not apply to determinations made under s. 57 of the MHA even though s. 57 does not contain the same exception as s. 54.
[53] With the greatest of respect to S.B., I do not see it as the role of this Court to make determinations on appeal, regarding arguments that could have been raised at the initial level of the Board hearing. The Board is the expert body that is best placed to make the initial determinations regarding the legislation it administers. This Court does not have the benefit of an appeal record, with the evidentiary findings and reasoning of the Board upon which to base its analysis. As the Ontario Court of Appeal stated in Clark v. BMO Nesbitt Burns Inc., 2008 ONCA 663, at paragraph 54, there is an obligation to put all the relevant submissions to the first instance decision-maker to allow them to address the appealable issue. Only in exceptional circumstances will a party be entitled to raise a new issue on appeal: M.M. v. de Souza, 2016 ONCA 155, at paragraph 26.
[54] This is not simply a rule that is followed in adversarial proceedings, as S.B. suggested. Rather, it is a rule that has been applied in the context of Capacity and Consent Board matters. In M.M., the Ontario Court of Appeal refused to entertain an argument that had not been raised before the Board or the appeal judge. S.B. has not convinced me that there are exceptional circumstances in the present case that militate in favour of dealing with this issue even though it was not raised in the first instance. Therefore, I reject the argument that the existence of a POA prevented the Board from making a capacity determination as a valid ground of appeal.
There was no Palpable or Overriding Error
[55] The Board properly noted that the test for determining capacity to manage property is a two-stage test. The Board found that S.B. passed the first part of the test, but not the second part.
[56] According to S.B., when the Board analyzed the second part of the test, the Board changed the nature of the test. The Board did not analyze whether S.B. was capable of appreciating property related decisions. Rather, the Board analyzed whether the appellant was able to appreciate the impact that Huntington's disease was having on his capacity to make property decisions.
[57] S.B. argued that the Board conflated his ability to appreciate the impact that Huntington's is having on his financial decisions with his ability to appreciate his financial decisions. S.B. stated that the Board's legislated mandate was to determine the latter not the former. According to S.B., the Board failed to conduct any analysis or give any reasons about his capacity to appreciate financial decisions. It was improperly preoccupied with his insight into the effects of his Huntington's disease.
[58] I agree with S.B. that after correctly articulating the second part of the test, the Board then used wording that suggested its focus was primarily on S.B.'s appreciation of the impact of his Huntington's condition on his financial decisions. However, for the following reasons, I find that the Board did in fact, apply the correct test, which was whether S.B. was capable of appreciating property related decisions.
[59] Firstly, S.B.'s appreciation of the impact his Huntington's disease on his financial decisions is an appropriate factor in determining whether he was capable of appreciating property related decisions. As this Court stated in W.S. v. Dr. Bismil, 2020 ONSC 173, at paragraph 18, "the test for capacity to manage property under s. 6 of the Substitute Decisions Act is to be analyzed as the similar test for capacity for treatment under the HCCA [Health Care Consent Act]".
[60] In Starson v. Swayze, 2003 SCC 32, at paragraphs 79-80, the Supreme Court of Canada stated that the statutory test for capacity to make treatment decisions under the HCCA requires the patient to be able to recognize the possibility that he is affected by the condition. As stated by the Supreme Court at paragraph 79: …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.
[61] Thus, it is clear that an individual's inability to recognize the manifestations of their mental condition is one indicator of their inability to appreciate the consequences of their property related decisions. The Board appropriately considered this as one of several factors in its capacity analysis.
[62] Secondly, the Board did not simply consider whether S.B. appreciated the impact of Huntington's disease on his ability to manage his property. Rather, the Board considered all the following evidence in reaching its conclusion of incapacity: (a) Dr. de Laplante's testimony was that between March 2020 and October 2020, S.B. had been missing payments of his mortgage, vehicle, and insurance before he was incarcerated. Earlier, he had also engaged in excessive spending including on alcohol and food delivery. The Board also noted Dr. de Laplante's evidence that S.B. had reached his credit card limit within ten days when his mother was acting as his POA. While that fact did not, on its own, signify that S.B. was not capable of managing his property, the Board determined it to be part of a pattern of behaviour that suggested that S.B.'s financial decision-making was impacted by Huntington's. (b) The Board noted Dr. de Laplante's concern that S.B. may be financially abused by others. Dr. de Laplante pointed out that S.B. had a credit card stolen from him suggesting that he was financially vulnerable. Furthermore, S.B. was associating with someone known to have antisocial traits and Dr. de Laplante believed that S.B. could be taken advantage of by this person. (c) The Board also noted Dr. de Laplante's opinion that if S.B. had full control of his assets, he would likely revoke the power of attorney and would be financially exploited by others. The Board considered Dr. de Laplante's concerns that S.B. would continue to make impulsive purchases as he had done previously, leading to significant financial jeopardy. The Board accepted Dr. de Laplante's opinion that S.B. could not appreciate these consequences because of the disease.
[63] The Board may not have clearly stated that its analysis included more than just S.B.'s appreciation of the impact of the disease on his financial decisions, but in my view that is not fatal to the decision.
[64] The task for appellate courts is not to finely parse the trial judge’s reasons in a search for error, but rather to assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review: R. v. G.F., 2021 SCC 20, at paragraph 69. As McLachlin C.J. put it in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paragraph 17: “The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded”.
[65] I find that the foundations of the Board's decision are clearly discernable, when looked at in the context of all the evidence, the submissions of counsel and the process as a whole. Although the Board may have altered the wording of the test in the course of its reasons, it actually applied the correct test to the facts and rendered the right decision. The Board took account of the evidence of S.B.'s erratic behaviour and lack of insight into the consequences of his financial decisions as well as his lack of insight into the impact of his condition on his decisions. The Board did not, in my opinion, make either an incorrect decision or a palpable and overriding error in determining that S.B. was incapable, at the time of the hearing, of managing his property.
[66] Therefore, S.B.'s appeal is denied.
Justice K.A. Jensen Released: June 2, 2023