Court File and Parties

COURT FILE NO.: CV-23-00665362-0000 DATE: 20230818 SUPERIOR COURT OF JUSTICE - ONTARIO

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board, pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, as amended

AND IN THE MATTER OF M.L., a patient at Centre for Addition and Mental Health, Queen Street Site

RE: M.L., Appellant AND: DR. HANNA MENG, Respondent

BEFORE: VERMETTE J.

COUNSEL: Jessica Szabo, for the Respondent Eyitayo Dada, Amicus Curiae

HEARD: July 26, 2023

Endorsement

[1] The Appellant, M.L., appeals from a decision of the Consent and Capacity Board (“CCB”) dated June 25, 2021 (with Reasons for Decisions dated July 4, 2021) that confirmed the finding of the Respondent, Dr. Hanna Meng, that M.L. was incapable with respect to treatment with antipsychotic medications and mood stabilizing medications. The CCB also confirmed that the requirements for the admission or continuation of M.L. as an involuntary patient were met. The issue of M.L.’s involuntary status is not before me on this appeal.

[2] M.L. was not represented by counsel before this Court. However, this Court had the benefit of receiving submissions from amicus curiae.

[3] I find that the CCB did not make any reviewable errors. Therefore, the appeal is dismissed.

A. Preliminary Matter

[4] M.L. commenced this appeal in June 2021, a few days after the CCB’s decision. I understand that M.L. is currently at the Toronto South Detention Centre (“TSDC”). Despite this, M.L. was able to attend at Civil Practice Court by videoconference to schedule the hearing of this appeal. Thus, he was aware of the date on which the appeal would be heard.

[5] While M.L. decided to pursue an appeal of the CCB’s decision, he did not file any materials and did not appear at the hearing.

[6] Based on the submissions of counsel for the Respondent and amicus curiae, I am satisfied that M.L. was fully aware of the hearing date and that he chose not to attend the appeal. I am also satisfied that the TSDC was aware of the hearing date and would have facilitated the attendance of M.L. by videoconference had he wished to participate in the hearing.

[7] Both counsel for the Respondent and amicus curiae were of the view that the appeal should proceed in the circumstances. I shared their view, especially since the CCB’s decision was rendered more than two years ago. As a result, the appeal proceeded in the absence of M.L., but with submissions by amicus curiae.

B. Factual and Evidentiary Background

[8] M.L. is 44 years old. He has been diagnosed with Bipolar 1 Disorder. After graduating from high school, M.L. was successful in obtaining a bachelor’s degree in mathematics. He subsequently commenced a master’s degree, but he was unable to complete his degree as he became psychiatrically unwell and struggled with depression. While receiving treatment with antidepressant medication in 2005, he experienced his first manic episode. It appears that M.L.’s functioning never fully recovered after this episode. M.L. was admitted to psychiatric facilities for treatment on a number of occasions over the years, including in 2006, 2010, January 2012, April 2018, January 2021 and June 2021.

[9] Based on the evidence that was before the CCB, M.L. had no apparent legal history prior to 2018 when he was charged with break and enter, forcible entry, assault and uttering threats. After being diverted to a mental health program in relation to these charges, he was followed in the community between December 2018 and September 2020 by a team from North York General Hospital. It was noted that his criminal behaviour was a product of his mental illness. When M.L. was discharged from that program, he was deemed to be at low risk to repeat his criminal behaviour if he continued to take his medication.

[10] M.L. was re-admitted to North York General Hospital for a brief period in January 2021, at which time it was noted that he had been “quite irregular” with his medications. He required chemical restraint and received a number of doses of PRN [i.e., as needed] medication. His behaviour improved as a result of the PRN medication, and he pledged to continue his regular medication and follow-up in the community. Following his discharge, M.L. again stopped filling his prescriptions and, a few months later, he was alleged to have engaged in further criminal activity.

[11] In May 2021, M.L. was arrested for charges of aggravated assault, forcible confinement and assault with a weapon. Following his arrest, he was detained at the TSDC. He was admitted to the Centre for Addiction and Mental Health (“CAMH”) on June 4, 2021, pursuant to a Form 1 “Application by Physician for Psychiatric Assessment” issued at the TSDC due to escalating agitation and disorganized behaviour.

[12] After the departure of the correctional officers from CAMH, M.L. remained in seclusion given his level of agitation and threatening behaviour. Upon assessment, a Form 3 “Certificate of Involuntary Admission” was issued on June 7, 2021. M.L. was transferred to a high security unit at CAMH on June 8, 2021. He was subsequently found incapable to consent to treatment of a mental disorder, and the appropriate form was issued on June 10, 2021. A Form 4 “Certificate of Renewal” was issued on June 20, 2021 with respect to M.L.’s status as an involuntary patient.

[13] On June 11, 2021, M.L. was allegedly involved in a serious “Code White” incident when three staff entered his seclusion room to deliver his meal. M.L. is alleged to have pushed the male staff member to the floor while grabbing hold of one of the two female staff members present. He refused to let go until the other female staff member physically intervened. He then chased the two female staff members into the nursing station, after which he continued to threaten them. Security assistance was required to restrain and return M.L. to the seclusion room. He was physically combative and assaultive towards staff and required intramuscular chemical restraints and physical restraints to manage his risk to others. The progress notes state that, on a number of occasions, M.L. threatened to rape staff and physicians. He also threatened to kill them and their family once he got out.

[14] Prior to his incarceration, M.L. was unemployed and lived in an apartment in Toronto. He had not been employed since 2012 and was financially supported by the Ontario Disability Support Program.

[15] At the hearing, Dr. Meng described as follows the symptoms of Bipolar 1 Disorder exhibited by M.L.:

He is exhibiting significant mood instability, with marked incapability and agitation, as well as the lability of his mood. And his speech and his thought process are increasingly disorganized and pressured, he is hyper talkative, he is difficult to interrupt, he is still very hyperactive and high level of energy, he is hypersexual, he is grandiose and he is religiously preoccupied and he has demonstrated a significant behavioural control and poor judgement and impaired rational thinking.

[16] Dr. Meng also gave evidence regarding M.L.’s ability to understand information relevant to making a decision about treatment. She said the following during her cross-examination:

MR. GRANT-NICHOLSON: Yes, thank you. Dr. Meng, you’ve indicated, I believe in your package, or at least that is what I have reviewed in M.L.’s medical chart, that he lacks understanding with respect to capacity for treatment. Is that still your position? Because you have testified that he was able to recently accept information about medication and, I think, also review it.

DR. MENG: So, that part, I believe, has shown some improvement, albeit, inconsistently. So, the level of inability to understand information does seem to have shown some improvement. Although that remains inconsistent. There are times where he is better able to participate in these discussions, either with myself or other members of the treatment team or his ability to review materials of a non-verbal form with them, but there have been other times where his level of agitation has prohibited him from being able to participate in those discussions to a meaningful degree.

MR. GRANT-NICHOLSON: And has he accepted the materials as of late, relating to the treatment being proposed? Like, does he have information right now?

DR. MENG: He was provided with the information. He ---

DR. MENG: Yes, he indicated when he had seen them that he was going to use them for toilet paper.

DR. MENG: My (inaudible). However, I discussed it with him, several times, but his responses have largely consisted of him verbalizing threats and racially derogatory comments.

MR. GRANT-NICHOLSON: And does M.L. have any cognitive or mental deficits that would prevent him from understanding basic information about psychiatric pharmacology?

DR. MENG: When he is able to listen, he is calm, he is able to take in that information. But as I said, for much of this admission, he has not been in a mental state to be able to do that with a calmness to be able to absorb it, to take in that information. Once the information goes in, he does show some, you know, there is definitely incapacity to understand the factual information and retain it.

[17] In addition, Dr. Meng testified that M.L. had “consistently shown an inability towards meaningfully appreciate the reasonably foreseeable consequences of any treatment decision or non-decision that he would make.”

[18] M.L. gave evidence at the hearing. While he made various statements about his past condition, his evidence was that he no longer had issues and his mind was “working perfectly” at the time of the hearing. M.L. stated the following, among other things:

MR. GRANT-NICHOLSON: […] So, M.L., would you say that you also saw some benefits with anti-depressants too?

M.L.: Well I was depressed, which I’m not no more. I’m not depressed. I’m happy, I’m fine. I mean, I’m not overly happy. I find I’m frustrated at being incarcerated. I’m dealing with criminal charges, which I’m going to fight in court with a jury trial. (Inaudible).

MR. GRANT-NICHOLSON: Sorry, M.L., I am trying to keep this a bit concise, right? [M.L], when it comes to your own mental condition, right, you have indicated earlier that you’ve experienced trauma. I mean, is there any other kind of mental condition that you think are impacting you right now or diagnosis that are impacting you?

M.L.: No longer. My conditions – the reason I was going manic and depressed is that I was expecting my psychiatrist Dr. (inaudible), he knows that he’s doing. And he told me that my issues were the chemistry imbalance in my brain were caused my trauma. (Inaudible) he was pushing me. He told me that I need to deal with psychological trauma and I did. And I could deal with it. (Inaudible) I’ve been talking with my abuser, she did mess me up. I shouldn’t get into it. But the point is, like at first. Then I deal with her that’s when I lost my temper, I can’t take it. And yeah – or I deal with it. I’m not dealing with her, exactly. I’m not typically depressed at all. Like that’s what the psychiatrist (inaudible). I don’t feel depressed. And I’m not sleeping for several days. And I’m just, like, I cannot concentrate, cannot (inaudible). And yeah, okay, I would take the slightest amount. I’m taking two milligrams of Olanzapine. I don’t (inaudible) for months. So this idea that I should be 20 milligrams of Olanzapine a day, this is insane. I also would be tired and hungry and feel like I’m being tortured all day. And it changes all my thinking. It would just make my tired and hungry all day long. There’s no need to be on this medication if this doctor thinks I’m manic. She’s lonely. She’ll say, have you got two minutes. I’m not able to talk and think and concentrate while I sit in bed and read a book, when I can do mathematics. I can play a chess game. I can have a conversation. (Inaudible) how many people she’s met didn’t need medication. How many people she (inaudible) manic and a book. This is nuts.

MR. GRANT-NICHOLSON: Okay is there any other reason why you know, you have concerns about taking this type of medication being described?

M.L.: Yes. Specifically, I have religious concerns. As a Christian, I believe that my body has the holy spirit. I believe that my creator made me perfect as I am. I (inaudible). My mind works great. I am happy with it. I am a genius. I mean it. I am an accomplished mathematician, pure mathematics and a chess expert. I’m not a master. But when a chess master plays me they have to be careful. A chess master says, oh wow, I’ve got to be careful; yeah, you do because you make the slightest mistake, I’ll check you. That’s how good my mind is. My creator made me perfect, the way I want. I have a Christian right to refuse medication and I have no need for it, so on two grounds; one, I don’t feel I require it. I argue against this diagnosis. I’m not manic. I’m not depressed. I don’t have second thoughts. (Inaudible) to me, they’re to her.

MR. GRANT-NICHOLSON: Okay. And did you –

M.L.: And two, as a Christian, my body has the holy spirit (inaudible) take medication that alters my mind, when my mind is working perfectly. Like, it’s working perfectly. I’ve had some thoughts, I’ve had emotional issues. Right now, my mind is working perfectly. I prove it. I can think. I can read a math textbook. I can play chess with chess masters, you’ve to be careful.

C. Legal Framework

[19] In order to put the discussion that follows in its proper context, it is important to review the relevant legal framework and the applicable statutory provisions.

[20] The test for capacity to consent to treatment is set out in section 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”):

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.

[21] Subsection 4(2) of the HCCA provides that a person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. The presence of a mental disorder cannot be equated with incapacity: see Starson v. Swayze, 2003 SCC 32 at para. 77 (“Starson”).

[22] In Starson, the Supreme Court of Canada made the following points with respect to the second criterion in subsection 4(1) of the HCCA, i.e., the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision (at paras. 78-81):

a. This criterion requires the patient to be able to apply the relevant information to their circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

b. The HCCA requires a patient to have the ability to appreciate the consequences of a decision, but it does not require actual appreciation of those consequences.

c. In practice, the determination of capacity should begin with an inquiry into the patient’s actual appreciation of the parameters of the decision being made: the nature and purpose of the proposed treatment; the foreseeable benefits and risks of treatment; the alternative courses of action available; and the expected consequences of not having the treatment. If the patient shows an appreciation of these parameters — regardless of whether they weigh or value the information differently than the attending physician and disagree with the treatment recommendation — they have the ability to appreciate the decision they make.

d. A patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient’s lack of appreciation may derive from causes that do not undermine their ability to appreciate consequences. For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences. Accordingly, it is imperative to inquire into the reasons for the patient’s failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents them from having the ability to appreciate the foreseeable consequences of the decision.

e. A patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to their own circumstances.

f. While a patient need not agree with a particular diagnosis, if it is demonstrated that they have a mental “condition” [1], the patient must be able to recognize the possibility that they are affected by that condition.

g. A patient is not required to describe their 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 cause of that condition.

h. Nevertheless, if the patient’s condition results in them 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.

[23] Section 15 of the HCCA provides that a person may be incapable with respect to some treatments and capable with respect to others, and that a person may be incapable with respect to a treatment at one time and capable at another time.

[24] Subsection 32(1) of the HCCA states that “[a] person who is the subject of a treatment may apply to the [CCB] for a review of a health practitioner’s finding that he or she is incapable with respect to the treatment.” In an application to the CCB, the CCB may confirm the health practitioner’s finding or may determine that the person is capable with respect to the treatment and, in doing so, may substitute its opinion for that of the health practitioner: see subsection 32(4) of the HCCA. At a capacity hearing, the onus is on the attending physician to prove on a balance of probabilities that the patient is incapable: Starson at para. 77.

D. Reasons of the CCB

[25] The hearing before the CCB took place on June 25, 2021. M.L. was represented by counsel at the hearing.

[26] The evidence before the CCB consisted of the oral testimony of Dr. Meng and M.L., as well as three exhibits submitted by Dr. Meng: (1) the CCB Summary prepared by Dr. Meng; (2) the relevant forms; and (3) a package of notes and records from CAMH dated between June 7 and June 21, 2021.

[27] In its reasons, the CCB reviewed the legal test for capacity to consent set out in section 4 of the HCCA. It stated that a person is presumed to be capable to consent with respect to treatment and that the onus to establish otherwise rests with the physician. The CCB also referred to the Starson decision.

[28] With respect to the first branch of the test for capacity under section 4, the CCB stated that it was reluctant to find that M.L. was unable to understand the information that was provided to him. Given its finding that M.L. failed the second branch of the capacity test, the CCB concluded that it was not required to make a finding regarding the first branch of the test.

[29] With respect to the second branch of the test, the CCB held that M.L. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision with respect to his treatment with antipsychotic medications and mood stabilizing medications. In its discussion of this issue, the CCB referred to Dr. Meng’s evidence that M.L. had been diagnosed with Bipolar 1 Disorder and reviewed the available information regarding M.L.’s hospitalizations for treatment of his illness. The CCB also summarized the events that took place after M.L. was criminally charged in May 2021. The CCB stated the following:

Dr. Meng testified that, although there was some improvement in ML’s condition, to the point where they were able to let him out of seclusion to shower and shave, there was very little meaningful improvement during the time that ML had been in hospital. At the time of the hearing, he remained manic. His mood was unstable. He exhibited lability – he would remain settled for periods of time if demands for his needs were met, but his irritability would rapidly escalate. He was hyper-talkative and got very little sleep while still exhibiting lots of energy. He was sexually preoccupied, often being naked, and frequently masturbating. He was aggressive and threatening. As recently as the morning of the day of the hearing, ML had threatened to cut off Dr. Meng’s head and defecate on her.

Dr. Meng’s evidence, and the information in the hospital records contained in Exhibit 3 illustrate ML’s extreme aggression and threats. He was sexually inappropriate in his comments about female staff, threatening rape on more than one occasion. There was also more than one occasion when ML threatened to kill or cause serious harm to staff members, or to find out where they lived and cause harm to their families once he got out of hospital. ML had been in seclusion since June 8, 2021, and remained there at the date of the hearing, which speaks to the acuity of his illness and the concerns for the safety of others.

Despite all of this, Dr. Meng indicated that ML consistently maintained that he did not have a mental illness and did not want medications because he did not require them. ML did not believe that he needed medications to deal with the symptoms of his mental illness because he did not believe that he suffered from any mental illness. ML was convinced that his presentation was a volitional act; that he was choosing to act as he did to register his displeasure and disengagement, rather than his presentation being a product of the symptoms of his acute mental illness.

ML gave evidence at the hearing. He made it clear that he did not think he was manic. He did not believe that he had a mental illness. He believed his behaviour was caused by the trauma of the abuse he suffered at the hands of his mother. He acknowledged that he had taken antipsychotic medications in the past, but saw only the downside of the medications – that they made him tired and hungry. He claimed that the medications that were being proposed for him would be of no benefit to him, because they were to treat symptoms that he did not have. He also claimed his body was the “holy spirit”; that his creator had made him perfect the way he was. ML felt, as his counsel indicated in his submissions, that taking antipsychotic medications would defile the purity of his body.

ML denied that he had threatened or injured anyone. He claimed that anyone who said he had done that, or that he had touched anyone, was lying. He maintained that if anyone thought he had committed a crime, then they should charge him – “take it to a jury”. These denials of wrongdoing were mixed in with his expressions of grandiosity. He said he was a genius, and a chess genius, which he distinguished from a chess master, that his mind was “working perfectly”, and that “I’m rebellious; I’m not crazy”.

The evidence to support a finding of incapacity was clear and compelling. ML had no appreciation of his need for treatment, because he did not believe that his mania and psychosis were manifestations of his mental condition or that there were any benefits for him of receiving treatment. As a result of his inability to truly recognize that he suffered those manifestations, ML was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision to treat those manifestations. He was unable to recognize the manifestations which accompanied previous relapses or illness, or that the medications that he had taken or were administered at the time had played any role in improving his condition.

From the evidence, the panel found that ML was unable to appreciate the consequences for him of either consenting or not consenting to treatment. The evidence before the Board supported Dr. Meng’s conclusion that ML was incapable with respect to the treatment proposed for him, specifically the administration of antipsychotic medications and mood stabilizing medications.

E. Mootness

[30] The Respondent seeks to adduce the affidavit of Sarah Rosales Zelaya, a lawyer at CAMH, as fresh evidence on the appeal. The Respondent wishes to rely on this evidence in support of her argument that the appeal is moot.

[31] While I find that the fresh evidence should be admitted and considered, I conclude that this appeal is not moot.

1. Respondent’s motion to adduce fresh evidence

[32] Ms. Rosales Zelaya provides the following information in her affidavit affirmed July 7, 2023:

a. M.L. was discharged from CAMH on June 30, 2021, which is the day on which he commenced an appeal of the CCB’s decision confirming Dr. Meng’s finding of incapacity to consent to treatment.

b. In February 2022, M.L. was discharged from CAMH’s Forensic Early Intervention Service, which offers ongoing assessment and support to clients at risk of being unfit to stand trial or who pursue a not criminally responsible defense.

c. On November 15, 2022, M.L. was briefly brought to the CAMH Emergency Department from the TSDC pursuant to a Form 1 “Application for Psychiatric Assessment”. M.L. was aggressive, grandiose, hyper talkative, with bizarre behaviours and threatening towards female staff. ML was unable to be treated due to the outstanding appeal and it was noted that PRN medication could be used to manage his aggressive behaviours. M.L. was discharged back to TSDC on November 16, 2022.

d. On December 1, 2022, M.L. was briefly brought to the CAMH Emergency Department from the TSDC pursuant to a Form 1 “Application for Psychiatric Assessment” for agitation, aggressive behaviour, threatening staff and refusing PRN medication at TSDC. To maintain safety, he was given the PRN medication at CAMH. He was discharged back to TSDC on the same day.

e. M.L. was scheduled to have an appointment at CAMH for a fitness to stand trial assessment on March 20, 2023. M.L. declined to attend this appointment.

f. According to the clinical notes that Ms. Rosales Zelaya reviewed, M.L. has not been re-admitted to CAMH and has not been seen and assessed by Dr. Meng since his discharge. Accordingly, there is no proposed treatment for M.L. from either Dr. Meng or any physician at CAMH.

[33] Subsection 80(9) of the HCCA states that on an appeal from a decision of the CCB, the court shall hear the appeal on the record, including the transcript, but may receive new or additional evidence as it considers just.

[34] The admission of fresh evidence on appeal is governed by the following principles set out by the Supreme Court of Canada in Palmer v. The Queen, [1980] 1 S.C.R. 759 at 775 (“Palmer”):

a. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

c. The evidence must be credible in the sense that it is reasonably capable of belief.

d. The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

See also Barendregt v. Grebliunas, 2022 SCC 22 at paras. 29-34, 48-55 (“Barendregt”).

[35] Amicus curiae did not oppose the admission of the fresh evidence.

[36] In my view, the Palmer test is met in this case. The fresh evidence could not have been rendered available for the hearing before the CCB and the Respondent’s conduct had no influence on the timing of the new facts. The fresh evidence is relevant and credible. In light of the mootness argument advanced by the Respondent, the evidence possesses sufficient probative force that, if it had been presented to the CCB and believed, it might have affected the result when considered with the other evidence adduced. See Barendregt at paras. 58-64.

2. Whether the appeal is moot

[37] I now turn to the Respondent’s argument that the appeal is moot. Amicus curiae disagrees that the appeal is moot.

[38] The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. This doctrine applies when the decision of the court will not have the effect of resolving some controversy that affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will generally decline to decide the case. However, the court may exercise its discretion to depart from the general policy and hear the case. See Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at 353.

[39] There is some uncertainty in the law as to the application of the principle of mootness to appeals from decisions of the CCB in cases where the patient was discharged prior to the hearing of the appeal.

[40] There is at least one case where the court held that a discharge rendered an appeal from a CCB’s decision of incapacity moot because the result of the appeal would not have a practical effect. See K.M. v. Shammi, 2012 ONSC 1102. In contrast, it was found in other cases that where a finding of incapacity was confirmed by the CCB, a subsequent discharge did not render the appeal moot because not hearing the appeal would deprive the appellant of the opportunity to rely on a prior capable wish to respond to a subsequent finding of incapacity. This point was articulated as follows by the Supreme Court of Canada in Starson at para. 118:

A patient’s capacity may fluctuate over time. The Board’s decision is specific to the patient’s capacity at the time of the hearing. A finding that Professor Starson is capable may have an important effect on future treatment decisions. If he subsequently becomes incapacitated, the attending physician needs consent to treatment from his substitute decision-maker: see s. 10(1)(b) of the Act [HCCA]. If the substitute decision-maker knows of a prior capable wish that is applicable to the circumstances, consent must be given or refused in accordance with that wish: s. 21. Consequently, the Board’s previous determination that Professor Starson was capable may be relevant to whether he had expressed wishes that are applicable to future circumstances. If so, he has the right to have that capacity recognized in law, so that sufficient recognition may be accorded to any wishes expressed at that time.

[41] In a number of other cases, courts have considered the circumstances following the discharge in their discussion of the principle of mootness. See Christoforou v. Shin, 2018 ONSC 2184 at paras. 46-49 (“Christoforou”) and C.F. v. Weinstein, 2019 ONSC 1555 at paras. 23-24 (“Weinstein”).

[42] Based on my review of the cases cited by the Respondent and amicus curiae on the issue of mootness, I agree with Stinson J.’s statement in Weinstein (at para. 24) that while cases dealing with the issue of the mootness of an appeal of a CCB’s decision after a patient has been discharged have had divergent results, such results are driven by the facts of the particular case.

[43] The fresh evidence shows that M.L. has had ongoing interactions with the mental health system and CAMH since Dr. Meng’s finding of incapacity was confirmed by the CCB. In similar situations, courts have found that an appeal of a decision of the CCB was not moot because the reversal of the CCB’s decision and the creation of a prior capable wish made during the time of the alleged incapacity could have some practical impact for the appellant: see, e.g., Christoforou at paras. 95-102, Keizer v. Nagari, 2018 ONSC 4424 at para. 33, and Weinstein at para. 25. Contrary to the situation in some of the cases relied upon by the Respondent, the situation in the present case is not one where the patient regained capacity after the hearing, the regained capacity was acknowledged by the respondent health care practitioner, and the patient had an opportunity, while capable, to express their wishes regarding potential future care: see Weinstein at paras. 26-28, and Adsett v. Labelle, 2023 ONSC 2842 at paras. 4-6, 21. This is also not a case dealing with the expiration of a community treatment order.

[44] Based on the particular circumstances of this case, including M.L.’s ongoing interactions with the mental health system, I conclude that the doctrine of mootness does not apply because the decision of this Court could have a practical effect on M.L.’s rights, i.e., his right to rely on a prior capable wish [2].

F. Standard of Review

[45] Section 80 of the HCCA sets out the statutory right of a party to a proceeding before the CCB to appeal to this Court on a question of law, fact, or both. On appeal, this Court may exercise the powers of the CCB, substitute its opinion for that of the health practitioner, the substitute decision-maker, or the CCB, or refer the matter back to the CCB with directions for a rehearing in whole or in part.

[46] Since the legislature has provided for an appeal from the decision of the CCB to this Court, the appellate standards of review apply to the CCB’s decision: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37. Thus, as set out in Housen v. Nicholaisen, 2002 SCC 33 (“Housen”), the standard of correctness applies to questions of law and the standard of palpable and overriding error applies to questions of fact and questions of mixed fact and law, unless an error of law can be extricated from the question of mixed fact and law, in which case the standard of correctness applies.

[47] The standard of palpable and overriding error was described as follows by the Court of Appeal in Farsi v. Da Rocha, 2020 ONCA 92 at para. 35:

A palpable and overriding error is one that is clearly wrong, unreasonable, or not reasonably supported on the evidence: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110. The Supreme Court recently explained in Salomon v. Matte‑Thompson, 2019 SCC 14, 432 D.L.R. (4th) 1, at para. 33, “[w]here the deferential standard of palpable and overriding error applies, an appellate court can intervene only if there is an obvious error in the trial decision that is determinative of the outcome of the case.”

[48] The fact that an alternative factual finding could be reached based on a different ascription of weight does not mean that a palpable and overriding error has been made: see Nelson (City) v. Mowatt, 2017 SCC 8 at para. 38 and Salomon v. Matte-Thompson, 2019 SCC 14 at para. 33.

G. Discussion

1. Capacity to consent to treatment

[49] In my view, the CCB applied the correct legal test with respect to capacity and did not make any error of law.

[50] Amicus curiae submits that the CCB made a palpable and overriding error when it failed to make a decision on the first branch of the test for capacity articulated in section 4 of the HCCA “in the face of overwhelming evidence that the Appellant had the ability to understand the information relevant to making treatment decisions.”

[51] I reject this argument. The CCB found that M.L. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment and, as a result, concluded that M.L. was incapable with respect to treatment with antipsychotic medications and mood stabilizing medications. Given the CCB’s conclusion on the second branch of the capacity test, the CCB’s decision not to rule on the first branch of the capacity test cannot constitute an overriding error because such alleged “error” would not be determinative of the outcome of the case. In other words, no matter the finding of the CCB on the first branch of the test, the outcome of the case would not have changed.

[52] In addition, amicus curiae argues that the CCB made a palpable and overriding error in finding that M.L. was not able to appreciate the reasonably foreseeable consequences of his treatment decisions. Amicus curiae states that the CCB erred in failing to recognize that M.L. acknowledged the manifestations of his condition and had the ability to appreciate the benefits and consequences of the treatment with antipsychotic medications and moot stabilizing medications. Amicus curiae submits that M.L.’s evidence shows that his choice regarding treatment is rooted in genuine and legitimate concerns about side effects.

[53] I also reject these arguments. A review of the CCB’s decision in the context of the evidence that was before it satisfies me that the CCB’s analysis is reasonably supported by the evidence and reflects an application of the proper legal principles to that evidence. I see no palpable and overriding error with the CCB’s conclusion that M.L. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the treatment in question at the time of the hearing. While M.L. may have acknowledged that he was affected by a mental condition in the past, this does not change the fact that there was evidence from both M.L. and Dr. Meng that M.L. was unable to recognize the possibility that he was affected by the manifestations of a mental condition at the time of the hearing. As stated in Starson, if a patient’s condition results in them being unable to recognize that they are affected by its manifestations, the patient is unable to apply the relevant information to their circumstances and unable to appreciate the consequences of their decision: see Starson at para. 79. The fact that M.L. may be able to identify and discuss the effects of medications does not make him capable with respect to the proposed treatment if he is unable to recognize that he is affected by the manifestations of a mental condition.

2. Religious beliefs

[54] Amicus curiae also argues that the CCB erred in not properly taking into account M.L.’s religious beliefs in making its decision. It is submitted that the CCB has an obligation to bear in mind the values reflected in the Canadian Charter of Rights and Freedoms (“Charter”) when making capacity decisions, including freedom of religion, and that the CCB had a duty in this case to make an inquiry as to whether M.L.’s religious beliefs were valid or a delusion that was the result of a mental illness. Amicus curiae relies heavily on this Court’s decision in Allen v. Brook, 2020 ONSC 6506, as well as on certain decisions of the CCB, including RC (Re), 2020 ONCCB 23179 and EP (Re), 2015 ONCCB 32546.

[55] The evidence regarding M.L.’s religious beliefs before the CCB was limited. Dr. Meng gave the following evidence on this issue:

I should note that from M.L.’s perspective, part of that grandiosity has informed him, one, that God, that he has a special relationship with God through which he understands from interpretation of the Bible, that he is not to take medications and that as an individual with the holy spirit inside of him, he cannot impurify his body with the interaction of medication. The other –

DR. MENG: The (inaudible) team has attempted to explain to him multiple times that for him to be able to be safe it requires for him to demonstrate he can be safe around other people and because that is a significant impairment at this time and that impairment appears most likely due to his acute symptoms of his mental state, that it is unlikely he would be able to show that improvement in his behaviour absent treatment. It really is in his best interest, in terms of his own, (inaudible) to be able to not only come out of hospital, but also to involve (inaudible) to his best interest to take medications. To that end, he is has indicated, essentially, that he does not believe – he believes that his actions are justified or from that he believes that he will not be held criminally responsible for his conduct in terms of his recent charges. As well, he has indicated that God will simply ensure he is able to have more liberty and come out of seclusion –

DR. MENG: -- irrespective of any improvement or changes to his behaviour or his presentation overall.

MS. MCDOUGALL: And so, Dr. Meng, you mentioned that you characterize his grandiose beliefs that basically the religious reasons for not taking medication, is that in line with your understanding of M.L.’s beliefs when he is well?

DR. MENG: No, he has indicated at times, most times in the past, and he’s been medicated, that he appreciates the benefits of medication and that he believes the medications are something that he can and should take. And certainly, the level of his preoccupation that he is exhibiting, as evidence just in terms of what he says but also in terms of how he is spending the majority of his time on the unit, is not consistent or does not appear to be consistent with the level of preoccupation or the level of intensity of religious values that he exhibits when he is well.

MR. GRANT-NICHOLSON: Okay. So, I mean, there’s been discussions about the topic you have had with M.L. and you have also talked about, you know, the issue with Effexor. Have you talked about, you know, why M.L. doesn’t want to take medication at this time and maybe, like, some of the negative side effects that has happened, historically, has he talked to you about that?

DR. MENG: Well, I have tried to discuss that with him. Again, the only thing he has indicated, and indicated repeatedly, are that his body is a temple; he needs to stay pure and cannot be –

M.L.: (Inaudible) yes, that’s right.

DR. MENG: -- essentially impure medication and that is only guided by God. The fact that he does not believe that he requires treatment. Any attempts to clarify concerns he may have had around medications have, again, led to reiterations of both assertions in conjunction with just an escalation of amount of verbal, derogatory and threatening statements.

[56] M.L. gave the following evidence regarding his religious beliefs:

MR. GRANT-NICHOLSON: Okay is there any other reason why you know, you have concerns about taking this type of medication being described?

M.L.: Yes. Specifically, I have religious concerns. As a Christian, I believe that my body has the holy spirit. I believe that my creator made me perfect as I am. I (inaudible). My mind works great. I am happy with it. I am a genius. I mean it. […] My creator made me perfect, the way I want. I have a Christian right to refuse medication and I have no need for it, so on two grounds; one, I don’t feel I require it. I argue against this diagnosis. I’m not manic. I’m not depressed. I don’t have second thoughts. (Inaudible) to me, they’re to her.

MR. GRANT-NICHOLSON: Okay. And did you –

M.L.: And two, as a Christian, my body has the holy spirit (inaudible) take medication that alters my mind, when my mind is working perfectly. Like, it’s working perfectly. I’ve had some thoughts, I’ve had emotional issues. Right now, my mind is working perfectly. I can prove it. I can think. I can read a math textbook. I can play chess with chess masters, you’ve to be careful.

[57] Dr. Meng’s lawyer made the following submissions to the CCB regarding M.L.’s religious beliefs:

MS. MCDOUGALL: […] Also, just address religion very briefly for a similar reason. I do think it’s important for the Board turn their minds, since there is a religious element here in the patient’s presentation, I think it is important that the Board turn their minds to that issue. When we have very clear evidence from both the record and the doctor today those religious beliefs that were kind of discussed today were not in keeping with M.L.’s beliefs in the past and the Doctor’s evidence ---

MS. MCDOUGALL: --- those beliefs were in fact a symptom of and a manifestation of current mania.

M.L.: Okay, are you saying that my faith in Christianity is somehow ---

MR. GRANT-NICHOLSON: M.L., M.L., it’s okay. I can help when it is our turn to make submissions, okay?

M.L.: Okay, okay.

MS. MCDOUGALL: So, I would ask the Board to turn their minds to that. And the reasons however, that does not stop the test from having been met and the doctor’s evidence is compelling that the patient fails the test for capacity on the second branch, largely due to the inability to recognize current symptoms which were discussed at length today. […]

[58] M.L.’s lawyer also made submissions to the CCB regarding M.L.’s religious beliefs:

MR. GRANT-NICHOLSON: […] Furthermore, doctor’s counsel has pointed out that, you know and the doctor, in her testimony, I should say, pointed out, you know, some of this could be related to religious delusion. I would submit that, you know, religious beliefs are not static. They can be transient or they can change in time, they are fluid. And –

MR. GRANT-NICHOLSON: Just because a patient is in hospital and is expressing religious convictions doesn’t necessarily mean that that is directly the result of a mental health diagnosis, it could also just be the fact that they find themselves in a very difficult situation and they are turning to their faith. M.L. has said that in his belief system, that he believes that psychiatric pharmacological interventions, you know, are a defilement and that is his personal opinion and belief system as he has articulated. And I think that the Board ought to weigh that into consideration. […]

[59] The transcript and the record of proceedings do not include any references to Charter values. The lawyers for the parties did not make submissions based on Charter values.

[60] The Court of Appeal recently dealt with an argument similar to the one raised in the present case, i.e., that the CCB had failed to take into account Charter values: see S.H. v. Prakash, 2023 ONCA 459 (“Prakash”). In my view, the Prakash case is very similar to this case and requires close review. The Court of Appeal stated the following at paras. 12-18:

[12] Counsel for the appellant makes a second argument. She contends that the CCB and the appeal judge failed to take into account Charter values, in particular, the right to freedom of religion, when applying the test for capacity laid down in s. 4(1) of the Act [HCCA]: see Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at paras. 55-56.

[13] There is no question that many, but not all, of the beliefs manifested by the appellant could properly be described as religious in nature. The sincerity of those beliefs is not questioned. The CCB concluded that the beliefs described by the appellant were a product of his mental condition. The medical evidence supported that finding. The appeal judge found no basis upon which to interfere with that finding. Nor do we.

[14] Neither the CCB, nor the appeal judge, expressly considered the argument that the court should factor the Charter values reflected in the right to freedom of religion into its application of the capacity test in s. 4(1) of the Act. It does not appear that this argument was expressly made in either venue.

[15] Both the CCB and the appeal judge appreciated, as is clear from their review of the evidence, that a significant component of the appellant’s belief system generating his resistance to treatment had a strong religious tone. However, both the CCB and the appeal judge were satisfied that the belief system and other conduct engaged in by the appellant was the product of a mental condition. That condition produced persecutory and religious delusions, grandiose delusions, poor insight, and tangential and disorganized thinking. The evidence of the appellant’s professed religious beliefs was a part of the broader picture of the appellant’s mental state developed in the clinical assessments of the appellant.

[16] The CCB found, and the appeal judge affirmed, that the appellant:

• Suffered from a mental delusional disorder;
• The appellant’s beliefs and thought process were a manifestation of his mental condition;
• The appellant was unable to recognize that his thought process and beliefs were potentially a manifestation of his mental condition; and
• Because the appellant could not see that possibility, he could not engage in the cost/benefit considerations necessary to an appreciation of the reasonably foreseeable consequences of either taking or refusing the medication.

[17] On the findings, the religious nature of some of the appellant’s beliefs and explanations for his conduct had no impact on the question of incapacity as defined in s. 4(1) of the Act. The appellant’s inability to appreciate that his beliefs and actions may be the product of a mental condition rendered him unable to appreciate the reasonably foreseeable consequences of taking or refusing the treatment. Characterizing the beliefs manifested as a consequence of his mental condition as religious could not affect the ultimate finding of incapacity once the court concluded the appellant was incapable, on account of his mental condition, of appreciating that his beliefs and conduct may be a manifestation of that mental condition.

[18] Counsel for the appellant correctly points out that Charter values can play a role in capacity determinations. The high value Canadian society places on the fundamental right to freedom of religion dictates that the CCB and the courts must proceed cautiously before characterizing a professed religious belief as a manifestation of a mental condition. The evidence must offer clear and cogent support for both the conclusion that the beliefs are a manifestation of a mental condition and the conclusion that the condition has rendered the individual incapable of recognizing that his beliefs may be the product of a mental condition. Decisions of the CCB demonstrate that it has regularly undertaken this analysis in the past: C.R. (Re), 2023 ONCCB 24871; G.S. (Re), 2021 ONCCB 152914; and E.P. (Re), 2013 ONCCB 49102. We are satisfied that that onus was met on this record. [Emphasis added.]

[61] A review of the CCB’s decision in Prakash – S.H. (Re), 2021 ONCCB 92456 – reveals that the CCB: (1) gave very short reasons; (2) did not refer to Charter values; (3) referred to S.H.’s religious beliefs, but did not expressly state that S.H.’s religious beliefs were a manifestation of a mental illness; and (4) simply accepted the physicians’ evidence that S.H. suffered from a delusional disorder and concluded that S.H. could not recognize his condition. The relevant part of the CCB’s reasons reads as follows:

SH testified the proposed antipsychotic medications would cut his grounding to the universe and interfere with his religious beliefs. The mind and soul were meant to work as one and medication would interfere with his ability to become one with his mind. He would not benefit from medication, but they would take away from his “connection to the universal entity.”

I accepted the evidence of both physicians that SH suffered a delusional disorder. SH’s evidence supported that conclusion and established that he could not recognize his condition. He denied it.

To paraphrase the Supreme Court decision in Starson quoted above, SH was not able to recognize he displayed the manifestations of a mental condition, one consequence of which was his inability to apply information about treatment decisions to himself. As a result, he was not able to appreciate the consequences of giving or refusing consent to treatment of the delusional disorder from which he suffered.

[62] The Court of Appeal reasonably inferred from the CCB’s reasons that the CCB had found that S.H.’s beliefs and thought process were a manifestation of his mental condition. The same interpretation can be applied to the CCB’s reasons in this case. In its reasons, the CCB expressly referred to M.L.’s beliefs that his body has the holy spirit, the creator made him perfect and taking medication would defile the purity of his body. The CCB also referred to M.L.’s expressions of grandiosity. As in Prakash, the CCB ultimately concluded that the evidence to support a finding of incapacity was clear and compelling and that M.L. was unable to recognize that he suffered from mania and psychosis. The only possible interpretation in this case, like in Prakash, is that the CCB concluded that M.L.’s beliefs and thought process were a manifestation of his mental condition.

[63] Like the Court of Appeal in Prakash, I am satisfied that the evidence in this case offers clear and cogent support that M.L.’s beliefs are a manifestation of a mental condition and that his condition has rendered him incapable of recognizing that his beliefs may be the product of a mental condition: see Prakash at para. 18. In addition to the evidence of Dr. Meng, the following non-exhaustive list of evidence in the record supports the conclusion that M.L.’s beliefs are a manifestation of a mental condition: [3]

a. M.L. displayed numerous other non-religious delusions and symptoms. Among other things, M.L.’s thought content did not only include religious themes. It was noted that his thought content was “characterized by grandiose, violent, religious and paranoid themes”.

b. Progress notes state that M.L. referred to “the Biblical necessity for not wearing clothes” as his justification for refusing to put on clothes and being naked in his room at CAMH. Clearly, M.L. previously wore clothes, notably when he was followed in the community by the team at North York General Hospital.

c. During the same period (and earlier), M.L. did take medication without any religious objections. He did so at least until early 2021. During his testimony, M.L. admitted to taking antipsychotic medication, albeit in smaller doses than prescribed. He did not explain why he was religiously allowed to take that medication but not the one in issue at the hearing.

d. While M.L. states that he is a Christian, it is very difficult to reconcile his behaviour while at CAMH (including violent behaviour towards staff, “sexual preoccupation” and very serious threats of violence) with the Christian belief system. Further, aside from the broad statement that he is Christian, M.L. has not articulated the basis in the Christian faith for the beliefs that he expressed in relation to the taking of medication, be it a religious precept or any other basis (e.g., a personal interpretation of a passage of the Bible).

[64] As set out above, the evidence in this case also supports the conclusion that M.L.’s condition has rendered him incapable of recognizing that his beliefs may be the product of a mental condition.

[65] Therefore, based on Prakash, as well as my analysis of the CCB’s reasons and the evidence before the CCB, I find no basis upon which to interfere with the CCB’s finding of incapacity, even though the CCB did not engage in a specific discussion of Charter values. While it would have been preferable for the CCB to engage in the type of analysis set out in the cases relied upon by amicus curiae and to make an express finding that M.L.’s beliefs and thought process were a manifestation of his mental condition, the fact that the CCB did not do so in this case is not, in itself, sufficient to find that the CCB made a reviewable error. This is clear from the Court of Appeal’s decision in Prakash.

[66] Amicus curiae and the Respondent disagree as to the applicable standard of review on the issue of the CCB’s failure to expressly discuss Charter values. The issue of the standard of review was not addressed in Prakash. Given that I have found that the Court of Appeal’s reasoning in Prakash applies to this case, it is unnecessary to decide the applicable standard of review as I would reach the same conclusion no matter the applicable standard. However, I note that even if the standard of correctness applied in this case, I would find that the CCB did not commit an error of law. The failure to discuss a relevant factor in depth, or even at all, is not, in and of itself, a basis for interfering with the findings of an adjudicator. It only constitutes a material error if it gives rise to the reasoned belief that the decision-maker must have forgotten, ignored or misconceived the evidence in a way that affected their conclusion: see Housen at paras. 39, 45 and York (Regional Municipality) v. Thornhill Green Co-operative Homes Inc., 2010 ONCA 393 at para. 38. As set out above, I am satisfied that the CCB did not ignore or misconceive the evidence on the issue of M.L.’s religious beliefs in a way that affected its conclusion.

[67] I also note that ordering a rehearing on the issue of M.L.’s religious beliefs, as requested by amicus curiae, would not be indicated in this case. If a rehearing were to be ordered, the CCB would have to assess M.L.’s capacity as at the date of the rehearing, not the date of the original hearing (see Allen v. Joannou, 2021 ONSC 4730 at paras. 40, 50-52). This would be impractical given that there has been no finding regarding M.L.’s capacity for more than two years. Since his discharge more than two years ago, M.L. has not received treatment at CAMH (aside from PRN medication) and has not been seen and assessed by Dr. Meng. Further, there is no proposed treatment for M.L. from either Dr. Meng or any physician at CAMH. If I had concluded that the CCB had erred in not expressly addressing the issue of M.L.’s religious beliefs in light of Charter values, I would have exercised this Court’s power under subsection 80(10) of the HCCA and found, based on the record, that M.L.’s professed religious beliefs were a manifestation of a mental condition and did not affect the CCB’s ultimate finding of incapacity.

H. Conclusion

[68] For the reasons set out above, I dismiss the appeal.

[69] M.L. did not participate in the appeal and the Respondent does not seek costs. I make no order as to costs.

[70] Counsel are to ensure that a copy of this decision is sent to M.L.

Vermette J. Date: August 18, 2023

Footnotes

[1] Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology: see Starson at para. 79.

[2] In my view, the fact that M.L. has had ongoing interactions with the mental health system is sufficient to reject the mootness argument. I note, however, that some of the Respondent’s arguments regarding mootness were not supported by clear and cogent evidence, including the argument that M.L. does not have an ongoing relationship with CAMH and was only brought back to CAMH because of the relationship between CAMH and TSDC. Among other things, there is no evidence before me regarding the relationship between CAMH and TSDC. The evidence is also not clear as to whether a treatment would have been proposed for M.L. when he was brought to CAMH in November and December 2022 had this appeal not been outstanding. Finally, the possibility that Dr. Meng may have to interact with M.L. again if he is brought back to CAMH is not addressed in the evidence.

[3] Amicus curiae raised the requirement of corroboration under section 14 of the Evidence Act, R.S.O. 1990, c. E.23. I note that hearsay evidence can be used as corroboration by the CCB and that corroboration can be based on circumstances presented in the case: see Farquhar-Lockett v Jones, 2016 ONSC 346 at paras. 68-72. In my view, Dr. Meng’s evidence regarding M.L.’s beliefs being a manifestation of a mental condition is corroborated by the circumstances of this case and the evidence in the documents that were marked as exhibits. See, for instance, the points set out in paragraph 63.