Court File and Parties

Court File No.: CV-21-00668721 Date: 20230620 Superior Court of Justice - Ontario

Re: Steve Ammba, Appellant And: Dr. Jason Joannou, Respondent

Before: Justice Papageorgiou

Counsel: Jessica Szabo/John McIntyre for the Defendant

Read: June 20, 2023

Endorsement

[1] This is a motion brought by the Respondent for an order granting leave to adduce Ms. Sarah Rosales Zelaya’s affidavit as fresh evidence, and to dismiss the delay or as moot.

Background

[2] This matter is an appeal brought by Steve Ammba, (“Mr. Ammba”) to a decision of the Consent and Capacity Board (the “Board”) dated June 17, 2021.

[3] Briefly, on June 8, 2021 Dr. Jason Joannou (“Dr. Joannou”) assessed Mr. Ammba and found him incapable of consenting to or refusing to consent to treatment of his mental health condition with all forms of antipsychotic medication. At the time, Mr. Ammba had been brought to CAMH.

[4] On June 16, 2021, the Board convened a hearing to review Dr. Joannou’s finding.

[5] On June 17, 2021 the Board confirmed Dr. Joannou’s findings.

[6] On August 6, 2021 Mr. Ammba filed a Notice of Appeal.

[7] On August 13, 2021 Mr. Ammba was released to his home with referrals to CAMH’s Slaight Centre for Early Intervention and outpatient follow up care.

Admission of Ms. Sarah Rosales Zelaya’s affidavit

[8] On an appeal of a Board decision, the Court may receive new or additional evidence as it considers just: Health Care Consent Act, 1996, SO 1996, c. 2 Sched A, s. 89(9); Courts of Justice Act, RSO 1990, c. C 43, s. 134(4).

[9] The overriding consideration in deciding whether to allow a party to adduce fresh evidence is the interests of justice. The evidence must be relevant, credible and reasonably expected to have affected the result: Palmer v. the Queen, [1980] 1 SCR 759, at p. 776.

[10] In A.N. v. Guimond, 2020 ONSC 6751, at paras 11-13 the Court accepted a motion to adduce fresh evidence on an appeal of a Board decision where it consisted of events and decisions which took place after the Board hearing.

[11] In this case, the affidavit material is not related to the merits of the underlying appeal but rather the motions to dismiss the appeal for delay or as moot.

[12] In my view, no leave is required for the admission of this affidavit in the circumstances and I may have regard to this affidavit with regard to the issues before me.

Dismissal for Delay

[13] In Szpakowsky v. Tenebaum, 2017 ONSC 18 at para 19, the Court set out the applicable principles to a motion to dismiss for delay: (1) the default is intentional and contumelious; or (2) there has been an inordinate and inexcusable delay for which the plaintiff or his lawyers are responsible resulting in a substantial risk that a fair trial will not proceed.

[14] Ms. Zelaya’s affidavit sets out the fact that since August 6, 2021, the Appellant has taken no steps to advance the appeal. Further, Mr. Ammba has moved to the Congo, does not have plans to return to Canada and his sister has advised that he does not wish to proceed with the appeal. Despite the efforts of the amicus curiae, Mr. Ammba cannot be reached to obtain instructions to withdraw the appeal.

[15] Given the above, I am satisfied that the default herein is intentional. The dictionary definition of contumelious is “abusive”, “insulting”, “outrageous”, “obscene”, “vituperative” or “scurrilous”. I cannot conclude that the delay is contumelious. As well, the delay of two years does not result in a substantial risk that a fair trial will not proceed.

[16] Nevertheless, this Court also has the discretionary power to dismiss for delay as part of its inherent jurisdiction to control its own process: Avdeeva v. Khankaldiyan, 2021 ONSC 2681 at para 21.

[17] I am satisfied that the appeal should be dismissed for delay taking into account the two years during which Mr. Ammba has taken no steps, together with his move to a remote location in the Congo, CAMH’s exhaustive efforts to communicate with him, and his sister’s information that he does not wish to proceed with the appeal.

The Appeal is Moot

[18] In Borowski v. Canada (Attorney General), [1989] 1 SCR 342 at 353, the Supreme Court confirmed that the Court will not generally hear appeals where “the required tangible and convert dispute has disappeared and the issues have become academic.”

[19] In this case, Ms. Zelaya’s affidavit confirms that there is no longer a tangible issue here.

[20] Capacity is a fluctuating concept. A patient’s capacity at one point does not necessarily have any bearing on that patient’s capacity in the future.

[21] Several appeals of Board decisions have been considered moot after a patient’s discharge from hospital. The Court has held that “the mere possibility” of a speculative, potential future event or collateral consequence which could make a person’s prior capacity relevant is not sufficient to render the matter “live” for the purpose of an appeal before the Court: A.N. v. Guimond, 2020 ONSC 6751, at paras 23-25; Manu v. Banik, 2018 ONSC 2247, at para 14.

[22] Here, Mr. Ammba was discharged from CAMH in August 2021, he is no longer a patient of Dr. Joannou who is no longer proposing treatment for him and he has not presented for treatment at CAMH since his discharge. Given that he is living in the Congo, it is unlikely the finding of incapacity made by Dr. Joannou will be relevant. If he ever presents to an Ontario hospital, the attending physician would have to conduct a new capacity assessment.

[23] I am also satisfied that while the Court has discretion to hear a matter which is moot on the merits, I should not exercise my discretion to do so. The criteria in this regard, as set out in Borowski, have not been satisfied. There is no live dispute or ongoing adversarial relationship regarding treatment. Mr. Ammba has shown no interest in pursuing this appeal. There are no special circumstances which warrant the application of scarce judicial resources. As noted above, treatment capacity is temporally specific. The appeal is not a matter of public importance. Finally, there is no longer any dispute affecting the rights of the parties.

Conclusion

[24] Therefore, the motion is granted and the appeal is dismissed.

Justice Papageorgiou Date: June 20, 2023