COURT FILE NO.: CV-23-81488
DATE: 2023/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
George Bennett
Appellant
– and –
Dr. Wesley Sutton
Respondent
Russell W. Brown, for the Appellant
Julia L. Lefebvre, for the Respondent
HEARD: December 1, 2023
THE HONOURABLE JUSTICE a.d. hilliard
Overview
[1] The Appellant, Mr. George Bennett, appeals a decision of the Consent and Capacity Board, dated April 17, 2023, upholding a finding of incapacity made by Dr. Wesley Sutton.
[2] Mr. Bennett raises two grounds of appeal:
The Board erred by relying on old evidence that did not reflect his mental condition at the time of the hearing, and
The Board erred by using the fact that Mr. Bennett disagreed with the treatment option recommended by Dr. Sutton to find that he was incapable with respect to treatment.
[3] For the reasons that follow, the appeal is dismissed.
Consent and Capacity Board Decision
[4] The Board convened a hearing on April 17, 2023 to review the finding of incapacity regarding treatment by anti-psychotic medication made by Dr. Sutton. The panel issued their decision on the day of the hearing and then released written reasons on April 20, 2023, which were prepared at the request of Mr. Bennett’s counsel.
[5] In its written reasons, the Board sets out the legislation considered, parties, appearances, preliminary matters, evidence led at the hearing, and the Board’s analysis resulting in the upholding of Dr. Sutton’s determination of incapacity.
[6] The preliminary matter dealt with an Exhibit included in the materials filed by Dr. Sutton, specifically reasons for decision released on May 31, 2022 in a previous appeal of a Board decision from November 5, 2021. This appeal decision was objected to by Mr. Bennett on the basis that the Board was not bound by previous appellate decisions and that this was a hearing de novo. The Board agreed with Mr. Bennett and the reasons were removed from the record.
[7] The Board cited the test for capacity under section 4(1) of the Health Care and Consent Act and then set out the standard of proof – balance of probabilities – applicable to a hearing regarding capacity. The reasons also noted that the onus was on Dr. Sutton to satisfy the board on the basis of cogent and compelling evidence that Mr. Bennett is incapable of making a decision regarding treatment as it pertains to antipsychotic medication.
[8] After weighing the evidence and applying the law, the Board found that Dr. Sutton had met his onus on a balance of probabilities and the finding of incapacity was upheld.
Standard of Review
[9] Mr. Bennett appeals pursuant to section 80 of the Health Care and Consent Act, which grants a right to appeal a decision of the Consent and Capacity Board and sets out the powers of the court on appeal:
80 (1) A party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.
(10) On the appeal, the court may,
(a) exercise all the powers of the Board;
(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;
(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.
[10] The Supreme Court of Canada established a new framework for the standard of review on administrative hearings in the recent decision of Canada (Minister of Citizenship and Immigration) v. Vavilov:
[…] where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court's jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker's authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37.[^1]
[11] Based on the new approach, if the Board has made an error in law that is reviewable on the correctness standard, but if the Board’s error is one of fact or mixed fact and law the standard to be used is palpable and overriding error. However, I am mindful of the cautionary note sounded by my colleague, Hooper J., in a Consent and Capacity Board appeal:
While the Board is entitled to deference in its assessment of the evidence, as stated in Vavilov at para. 36: the requirement of deference must not sterilize such an appeal mechanism to the point that it changes the nature of the decision-making process the legislature intended to put in place. If the Board's reasons, taken as a whole, are not tenable to support the ultimate decision, the decision is unreasonable (see R.K. v. Ahmed, 2019 ONSC 3348 citing Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 30).[^2]
Error 1 – Reliance on Previous Medical History
[12] During oral submissions the first ground of appeal was particularized as the Board failing to acknowledge a change in Mr. Bennett’s mental health, specifically Mr. Bennett’s evidence acknowledging his delusions rather than denying them as he did in the past.
[13] Mr. Bennett argues that this is a legal error rather than a mixed fact and law error as the Board failed to properly apply the law insofar as the presumption of capacity and the onus remaining with the doctor throughout the proceedings. Mr. Bennett argues that by considering his medical history and failing to acknowledge the changes in his mental health, the Board preferred the evidence of Dr. Sutton without adequate grounds and failed to hold Dr. Sutton to his onus to demonstrate incapacity.
[14] Dr. Sutton argues that this alleged error is one of mixed fact and law and the standard of review is therefore palpable and overriding error. I agree.
[15] Mr. Bennett’s concern about the Board inappropriately using or relying on his past medical history was raised by his counsel at the hearing. The Board agreed and specifically referenced Mr. Bennett’s concern in its reasons for decision. At page 10 of the reasons for decision, Ms. Lakra for the Board writes: “I agree the Form 33 issued by Dr. Shariati was not relevant (sic) GB’s capacity on the hearing date. […] I considered the evidence as it pertained to the time of the hearing and ultimately determined that the evidence supported the finding of incapacity on a balance of probabilities.”
[16] This statement in the Board’s reasons was not platitudes as alleged by Mr. Bennett. The Board made findings of credibility in favour of Dr. Sutton because his evidence was supported by Mr. Bennett’s medical history. That corroboration is required by the Evidence Act and was appropriately considered by the Board. The medical history was not, however, the basis for the Board’s decision that Mr. Bennett is incapable. Rather the Board accepted the evidence of Dr. Sutton, preferring it to the evidence of Mr. Bennett, which the Board was entitled to do.
[17] The determination of what use to make of Mr. Bennett’s medical history is a question of mixed fact and law. It is entirely within the confines of the Board making a determination of capacity, which the Supreme Court has confirmed in Starson v Swayze[^3] is a question of mixed fact and law.
[18] I also reject the argument that the Board failed to consider a material change in Mr. Bennett’s mental health. Far from failing to address the evidence of a change in Mr. Bennett’s mental health, the reasons of the Board specifically discuss Mr. Bennett’s evidence about his mental health status at the time of the hearing. At page 7 of the reasons for decision, the Board notes: “GB stated he appreciated his diagnosis and the consequences if untreated. GB also advised the risk to him decreased the longer he spent in public without any negative events.”
[19] It is a finding of fact to be made by the Board as to whether there is evidence to support a finding that there has been a material change in Mr. Bennett’s mental health. The Board was entitled to accept or reject Mr. Bennett’s evidence regarding changes to his mental health. In assessing Mr. Bennett’s evidence, the Board weighed it against Dr. Sutton’s evidence and preferred Dr. Sutton’s evidence, which the Board is entitled to do.
[20] The treatment of the evidence regarding Mr. Bennett’s mental health, both past and present, is a matter of fact. The use made by the Board of these factual findings in determining capacity is a matter of mixed fact and law. Both are entitled to deference and reviewable on the standard of palpable and overriding error.
[21] I find no palpable and overriding error in the Board’s assessment of the evidence regarding Mr. Bennett’s medical history and therefore give no effect to this ground of appeal.
Error 2 – Finding of incapacity based on disagreement with proposed treatment
[22] Mr. Bennett argues that the Board erred in basing its finding of incapacity on his disagreement with the treatment regime being proposed by Dr. Sutton. Mr. Bennett argues that this is an error in law because in conflating disagreement with treatment and incapacity, the Board is applying a best interests test which is the incorrect legal test.
[23] Dr. Sutton argues that the alleged error would be an error of mixed fact and law as the issue is the application of the facts to the legal test. He further argues that there was no error in the Board’s decision, specifically that the Board did not improperly apply a best interests test and did not conflate disagreement with treatment and incapacity.
[24] A person is presumed capable until a physician can prove on a balance of probabilities that the person is incapable based on cogent and compelling evidence. A person is capable if they are (1) able to understand the information relevant to making a decision about treatment, and (2) able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[25] If the person whose capacity is in question shows an appreciation of the nature and purpose of the proposed treatment, the foreseeable benefits and risks of treatment, alternative courses of action, and the expected consequences of not having the treatment then that person is capable. It is irrelevant to consider whether the person weighs or values information differently than the physician or whether the person disagrees with the treatment recommended. Put another way, the Board must not consider whether treatment is in the person’s best interests as a proxy for determining capacity.
[26] The test for capacity was correctly stated in the Board’s reasons. The reasons specifically refer to Dr. Sutton’s reliance only on the second branch of the test and indicated that only evidence as it pertained to the second branch of the test was considered.
[27] There is nothing in the written reasons issued by the Board to support the argument that a best interests analysis was used to find Mr. Bennett incapable of consenting to treatment. The Board’s decision specifically states that Mr. Bennett’s best interests were not considered in determining capacity.
[28] I cannot find anything in the Board’s reasons to support the argument that disagreement with the treatment proposed was conflated with incapacity. The Board considered the evidence of both Mr. Bennett and Dr. Sutton in making its determination as to whether Mr. Bennett appreciates the reasonably foreseeable consequences of a treatment decision. It was well within the Board’s purview to test Mr. Bennett’s evidence against Dr. Sutton’s evidence and then find that Dr. Sutton’s evidence was to be preferred.
[29] Mr. Bennett’s submission that the presumption of capacity should inform the Board’s treatment of his evidence is not supported by the legislation or case law. There is nothing in the Health Care and Consent Act or in the jurisprudence interpreting that legislation that stands for the proposition that a person whose capacity is in question should have their evidence weighed or considered differently than any other evidence. There is nothing compelling an individual to testify on their own behalf at a capacity hearing, which is specifically noted in the Board’s decision. Once a person chooses to testify, their evidence will then be assessed by the Board along with all of the other evidence presented at the hearing, as the Board did with Mr. Bennett’s evidence.
[30] Similarly, there is no authority supporting Mr. Bennett’s argument that Dr. Sutton’s evidence should be treated with inherent suspicion by the Board. The presumption of capacity is not equivalent to a presumption that the doctor’s opinion regarding incapacity is incorrect. Although I agree with the argument that the Board must not be biased in favour of Dr. Sutton, there is nothing in the Board’s reasons to suggest such a bias. The Board looked to corroborative evidence in their treatment and assessment of Dr. Sutton’s evidence. Similarly with Mr. Bennett’s evidence, the Board compared his testimony to Dr. Sutton’s evidence, which, as I noted above, the Board is entitled to do in making their assessment of credibility.
[31] Application of the wrong legal test would be an error in law reviewable on a standard of correctness. If the Board had applied a best interests test that would be an error in law. However, I find that the Board did not err and did not apply the wrong legal test. The Board did not apply a best interests standard either overtly or covertly.
[32] Although I agree with Mr. Bennett’s submission that if the Board had conflated disagreement with treatment and incapacity that would amount to an error in law, I can find nothing in the reasons to support the proposition that the Board made such an error. I therefore give no effect to this ground of appeal.
Conclusion
[33] Having found no errors made by the Board, the appeal is hereby dismissed.
[34] Dr. Sutton is not seeking reimbursement for his costs of this appeal and I agree that no costs on the appeal is appropriate.
A.D. Hilliard
Released: December 6, 2023
COURT FILE NO.: CV-23-81488
DATE: 2023/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
George Bennett
Appellant
– and –
Dr. Wesley Sutton
Respondent
REASONS FOR JUDGMENT
A. D. Hilliard, J.
Released: December 6, 2023
[^1]: 2019 SCC 65, [2019] SCJ No 65 at para. 37. [^2]: Carre v Jannack, [2002] OJ No 3691 (SCJ) at para. 33. [^3]: 2003 SCC 32, [2003] 1 S.C.R. 722