COURT FILE NO.: CV-24-00712839-0000
DATE: 20240507
ONTARIO
SUPERIOR COURT OF JUSTICE
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, Schedule A
AND IN THE MATTER OF MR a patient at Waypoint Centre for Mental Health Care, Penetanguishene, Ontario
BETWEEN:
MR
Appellant
- and –
DR. ACHAL MISHRA
Respondent
Kevin Gray for the Appellant
James P. Thomson for the Respondent
HEARD: April 10, 2024
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] By reasons for decision released on January 2, 2024, pursuant to the Health Care Consent Act, 1996,[^1] an Adjudicator of the Consent and Capacity Board found that MR was incapable of consenting to treatment with anti-psychotic medications.
[2] The respondent at the hearing before the Board was Dr. Achal Mishra, MR’s psychiatrist and the Medical Director and Staff Psychiatrist at Waypoint Centre for Mental Health Care.
[3] MR appeals the Board’s decision. The grounds of the appeal are that the adjudicator, Board Member Laura Silver: (a) was overly deferential to Dr. Mishra’s testimony; (b) overly critical of MR’s testimony (i.e., subjected MR’s testimony to unreasonable scrutiny while ignoring obvious contradictions); (c) made findings that cannot be supported by any reasonable interpretation of the evidence; and (d) misapplied the law.
[4] For the reasons that follow, the appeal is dismissed without costs.
B. Facts
[5] MR has a lengthy history of mental health problems. He has been involved more or less continually with the province’s mental health and criminal justice systems for almost two decades. He has never been convicted of a criminal offence because he has repeatedly been judged not criminally responsible (“NCR”). His serious mental illnesses cause him to act indecently, aggressively, and violently.
[6] MR is a 51-year-old highly intelligent man with a diagnosis of schizophrenia, autism spectrum disorder (“ASD”), and cannabis use disorder in sustained remission.
[7] In 2006, MR was charged with a harassing offence. He was found NCR. Pursuant to the Criminal Code[^2] and the Mental Health Act,[^3] he was placed under the supervision of the Ontario Review Board. He was granted an absolute discharge in 2011.
[8] In June 2014, MR was found NCR for the offence of criminal harassment. He was placed under the supervision of the Ontario Review Board and was detained at Ontario Shores Centre for Mental Health Sciences.
[9] In April 2015, MR was transferred from Ontario Shores to the Centre for Addiction and Mental Health (CAMH).
[10] On October 1, 2015, MR was discharged from CAMH. While dutifully adhering to a treatment plan, he functioned well in the community, until December 2020 when he was arrested and charged with criminal harassment. He was accused of harassing an employee at a grocery store. He was found to be NCR.
[11] Following his arrest in 2020, MR was initially detained at the Toronto South Detention Centre, and then in January 2021, he was admitted to CAMH in the general forensic unit.
[12] In March 2021, MR was placed in the acute treatment unit at CAMH due to his inability to manage his behaviour and the risk he presented to others at CAMH.
[13] While at CAMH, MR stalked, chased, badgered, harassed, and propositioned the female staff. He accosted and verbally abused co-patients. He smeared feces on the nursing station window. He urinated, defecated, and masturbated in public places. He was a nuisance. He called 911, paramedics, and the police accusing CAMH staff of sexual assaults. The aberrant behaviour was persistent. He was frequently placed under restraint or locked seclusion.
[14] On April 27, 2022, MR refused his medication. Over the next several months, MR incurred repeated periods of locked seclusion for aberrant and threatening behaviour.
[15] While MR was at CAMH, he was treated by Dr. Roland Jones. On March 22, 2023, Dr. Jones found MR incapable of consenting to antipsychotics.
[16] On April 14, 2023, Dr. Jones’ decision was upheld by the Consent and Capacity Board. The Board found that although MR could understand the information about his treatment, he was unable to recognize that he had a mental illness and thus he lacked capacity to consent to medical treatment.
[17] MR wished to make his own treatment decisions, and he appealed the Board’s April 2023 decision finding that he was incapable of consenting to antipsychotic medications. The appeal is to the Superior Court of Justice.
[18] In July 2023, CAMH applied to the Ontario Review Board to have MR transferred to another psychiatric facility.
[19] While his appeal of the Consent and Capacity Board’s April 2023 decision was pending before the court, on October 18, 2023, MR was transferred from CAMH to the Waypoint Centre for Mental Health. This transfer has been disputed and the transfer is at present under appeal to the Ontario Court of Appeal.
[20] In November 2023, MR abandoned his appeal of the Board’s April 2023 incapacity finding.
[21] MR declined consenting to antipsychotic medications and on December 7, 2023 Dr. Mishra found that MR was incapable of consenting to antipsychotic medications. MR immediately filed a request that the incapacity ruling be reviewed by the Consent and Capacity Board.
[22] On December 15, 2023, Dr. Mishra documented a change in MR’s position regarding his illness. MR agreed that he had schizophrenia. However, MR believed that his medication at any dose had not been helpful and that his problems had started after he had been given medication. In his medical record’s note, Dr. Mishra noted that MR did not accept any responsibility for defecating in public areas and insisted he had only done so because he had not been afforded privacy during toileting. He denied harassing or targeting any female staff at CAMH. He denied posing any kind of risk that required hospitalization or treatment.
[23] On December 21, 2023, there was a hearing before the Consent and Capacity Board. MR and Dr. Mishra testified.
[24] The evidence before the Board was comprised of (a) Dr. Mishra’s testimony; (b) MR’s testimony; (c) Dr. Mishra’s electronic brief of documents containing a Consent and Capacity Board Summary and Form 33 under the Mental Health Act, Progress Notes and Clinical Records (36 pages); and (d) Dr. Jones’ report to the Consent and Capacity Board, along with information from Waypoint Medical Records (18 pages).
[25] Based on the evidence for the hearing, the Adjudicator concluded that MR was extremely intelligent, articulate, and capable of understanding the information provided to him about the benefits and risks of Risperdal Consta. She found that the first branch of the test of capacity had been satisfied. The issue then for the adjudicator was whether MR was able to appreciate the reasonably foreseeable consequences of a decision about Risperdal Consta.
[26] MR testified that he knew he suffered from schizophrenia. He said he knew he needed medication and that without it, he would relapse and deteriorate. However, MR disputed that he needed as high of a dose of the antipsychotic that was being administered. He said he wanted to lower the dose of the medication or to take the recommended dose over a longer interval to lessen the side effects he suffered, including, among others, constipation, stomach pain, diabetes, lack of energy, and sexual dysfunction.
[27] Dr. Mishra testified that with an increase of MR’s dose of antipsychotics (Risperdal Consta) to 37.5 mg, MR was making slow and steady improvement in his symptoms. Dr. Mishra testified that with medication, MR was more organized, less agitated, and manifested less inappropriate behaviour.
[28] Dr. Mishra testified that except for very recently, MR had consistently maintained that he did not have schizophrenia and that he denied or minimized misbehaviour and he did not believe he needed antipsychotic medication. Dr. Mishra testified that except for very recently, MR had demanded that his being medicated should stop. Dr. Mishra stated that MR had stated that he would consider taking medication at the lower doses than had originally been prescribed.
[29] Dr. Mishra said that MR stated that there were no benefits from drugs. Dr. Mishra testified that MR persisted in his belief that he had done nothing to warrant a transfer to Waypoint and that he denied having misbehaved at CAMH and Waypoint. Dr. Mishra testified that MR believed that his problems with the mental health system started after he was given medication. Dr. Mishra concluded that MR did not appreciate the consequences of a decision to take psychiatric medication to treat the symptoms of his schizophrenia and ASD.
[30] Although the Adjudicator accepted the evidence of MR and Dr. Mishra that MR was capable of understanding the proposed treatment, the adjudicator found that MR was incapable of applying that intellectual understanding of the treatment to his specific situation and thus was incapable of appreciating the reasonably foreseeable consequences of his decision to accept or refuse treatment.
[31] The Adjudicator determined that although MR had recently articulated that he appreciated being affected by schizophrenia, he lacked an actual appreciation that he suffered from a disorder.
[32] The Adjudicator noted that notwithstanding this recent verbalization of an understanding, MR persisted in his view that his aberrant behaviour was not connected to his schizophrenia. He attributed his interactions with the nurses to being a friendly person, fond of the nurses and doctors because of the care they provided him.
[33] The Adjudicator noted that MR persisted in denying any inappropriate behaviour. He attributed his masturbating while staring at a nurse as a misunderstood joke. She noted that he refused to take responsibility for repeatedly defecating in public spaces, blaming this behaviour on hospital staff or hospital policies. She noted that he insisted that he had not engaged in any behaviours at CAMH or Waypoint that warranted his seclusion.
[34] The Adjudicator noted that MR had testified that he did not need an increased dose because his symptoms were negligible and there was nothing that he did that was unordinary.
[35] The Adjudicator found that MR lacked an appreciation for the severity of his illnesses, the connection between treatment and his improvement, and the likely consequences of not taking the proposed medication at the recommended dose.
[36] She found that MR was unable to apply the relevant information about the benefits and risks of medication to his circumstances because he was unable to recognize that he actually was affected by his schizophrenia and ASD.
[37] The Adjudicator found that the absence of an actual appreciation of his illness and its connection to the prescribed treatment prevented MR from rationally weighing the benefits of the medication against their risks. She held that MR lacked insight into the actual severity of his symptoms, undervalued the benefits of treatment, overvalued the risks of side effects, and that his rigidity of thinking stemming from his schizophrenia and ASD was interfering with his ability to appreciate the consequences of his decision.
[38] The Adjudicator found that on the balance of probabilities, MR’s symptoms interfered with his ability to fully evaluate how the treatments being proposed or how the absence of the recommended treatment would likely affect him. She concluded that MR was incapable of consenting or refusing consent to antipsychotics. She delivered her decision on December 21, 2023.
[39] On January 2, 2024, the Board released its Reasons for Decision.
[40] MR appealed to this court.
C. Fresh Evidence
[41] During the hearing before the Consent and Capacity Board, Dr. Mishra was asked whether he discussed the risks and benefits and side effects of the treatment with KR, MR’s sister. Dr. Mishra answered:
That is correct. So, she, you know, she is consenting, she is well aware of the situation that, you know, of what is happening at CAMH, the events that led to his transfer, I've had a conversation with her following his transfer.
[42] The day after the hearing, MR’s counsel wrote Dr. Mishra’s counsel advising that KR had not been consulted with respect to MR’s treatment.
[43] Dr. Mishra’s counsel responded by providing MR’s counsel with an affidavit from Sharon Gillespie, a law office assistant. The affidavit attached Dr. Mishra’s clinical notes. The notes shows that Dr. Mishra discussed treatment with KR on October 27, 2023, eight days after MR’s admission to Waypoint:
Phone call with [KR], sister and Substitute Decision Maker of MR on October 27, 2023. He [sic] was updated about his progress at Waypoint. We discussed MR’s reluctance to accept treatment i.e. the injection of Risperdal Consta. She stated that she had seen an improvement since he had commenced a treatment. We discussed that he would be administered the medication against his wishes by staff using appropriate techniques. She was aware that this had been the situation at the Center for Addiction and Mental Health [...]
[44] On this appeal, MR presented the fresh evidence of the affidavits from: (a) Ms. Gillespie, and (b) KR, who deposed that she had not consented to MR’s treatment. The fresh evidence was proffered as relevant to Dr. Mishra’s credibility. In his factum MR submitted that
By itself, this does not change whether MR is capable. It does, however, show that Dr. Mishra’s knowledge of MR’s case is limited and should have been treated with great care by the adjudicator.
[45] Although, this evidence does not satisfy the test for the admission of new evidence,[^4] I am admitting the evidence and ruling on its value.
[46] I agree with MR’s counsel’s acknowledgment that the fresh evidence does not affect the issue of MR’s capacity. I disagree that the evidence shows that Dr. Mishra had limited knowledge of MR’s case.
[47] Having reviewed the evidentiary record, I find that whether or not the Adjudicator should have treated Dr. Mishra’s knowledge with great care, she did treat his evidence with appropriate care. In my opinion, in her treatment of the evidence of MR and Dr. Mishra, there was no error much less a palpable or overriding error.
D. The Standard of Appellate Review
[48] Under s. 80(1) of the Health Care Consent Act, 1996, 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. The court on appeal has a broad remedial jurisdiction. The court may: (a) exercise all the powers of the Board; (b) substitute its opinion for that of a health practitioner, substitute decision-maker, or the Board; or (c) refer the matter back to the Board with directions for rehearing in whole or in part.
[49] Section 80 of the Act permits a party to a proceeding before the Board to appeal to the Superior Court on a question of law, fact or both. The standard of review on questions of law is correctness.[^5] The standard of review on questions of fact or mixed fact and law is palpable and overriding error.[^6]
[50] The word “palpable” means “clear to the mind or plain to see”,[^7] and “overriding” means “determinative”[^8] in the sense that the error “affected the result”.[^9] The Supreme Court has held that other formulations capture the same meaning as “palpable error”: “clearly wrong”, “unreasonable” or “unsupported by the evidence”.[^10]
[51] The determination of an individual’s capacity with respect to a treatment is a question of mixed fact and law.[^11]
E. Law: Consent to Treatment
[52] Section 4 of the Health Care Consent Act, 1996 stipulates the criteria for determining whether a person is capable with respect to a treatment.
[53] Capacity is treatment specific, and the question is the patient’s capacity to consent to the proposed treatment.[^12]Capacity is temporal, and a person can be capable with respect to a specific treatment at one time and not another and a person can be incapable at the time of being assessed by a physician but capable at the time of the hearing.[^13]
[54] A patient does not have to act in his or her own best interests and if the patient is capable of consenting to treatment, he or she has a right to refuse treatment, even if the treatment is from a medical perspective in their best interest.[^14] The question on a capacity assessment is not whether the patient’s decision is reasonable; the question is whether the patient has the capacity to make a decision.[^15] The Board is tasked with making decisions on the question of capacity, not on the advisability of a proposed treatment regime from a medical perspective.[^16]
[55] Section 4(1) of the Health Care Consent Act establishes a two-branch test for determining a person’s capacity to consent to treatment. A person is capable with respect to a treatment if the person is able to: (a) understand the information that is relevant to making a decision about the treatment; and (b) appreciate the reasonably foreseeable consequences of a decision or lack of decision.[^17]
[56] In Starson v. Swayze,[^18] Justice Major, writing for the majority, explained the two criteria for capacity as follows:
- First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information ... Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.
[57] The fact that the patient has a mental condition does not preclude the patient having the capacity to decide about medical treatment.[^19] The Board must avoid the error of equating the presence of a mental disorder with incapacity; the presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity.[^20]
[58] For capacity to consent, the Health Care Consent Act does not require the patient to actually appreciate the consequences of his or her decision; rather, it requires the patient to have the ability to appreciate. Justice Major explained, at para. 80 of his decision in Starson v. Swayze, that while the Act requires a patient to have "the ability to appreciate the consequences of a [treatment] decision", it does not require "actual appreciation of those consequences."
[59] If the patient has an appreciation of 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, then he or she has the ability to appreciate the decision made, even if the patient disagrees with his or her physician’s treatment recommendation.[^21]
[60] A patient need not agree with the diagnosis of his or her attending physician to be able to apply the information relevant to a treatment decision to his or her own circumstances; however, if it is established that the patient in fact has a mental condition, the patient must be able to recognize the possibility that he or she is affected by that condition.[^22]
[61] To determine that a person is capable with respect to a treatment, the Board must be satisfied that there is evidence that the person is able to appreciate the consequences of a decision or lack of decision in respect of treatment beyond mere verbalization of an understanding and that the person is able to apply the information about the proposed treatment to his or her own situation. If the person cannot apply the information to his or her own situation, then he or she does not have the ability to appreciate the reasonably foreseeable consequences of a decision or a lack of decision in respect of treatment.[^23]
[62] If it is demonstrated that the person is being affected by a mental condition in the broad sense that he or she is manifesting the symptoms of an illness, then to pass the test of capacity, the person must be able to recognize the possibility that he or she is affected by that condition. The question is: does the patient recognize, which is to say appreciate, that the symptoms affect his or her behaviour and thinking.[^24] In Conway v. Darby,[^25] Justice D.M. Brown, described this ingredient of the test for capacity as follows:
- Put another way, where it is demonstrated that a patient displays objectively discernible manifestations of an illness, a Board should ask: does the patient recognize that he is affected by such manifestations or that his mental functioning was not normal? If a person's disorder causes them to be unable to recognize that they are affected by its manifestations, then they will be incapable of applying the relevant treatment information to his or her circumstances and will as a result be unable to appreciate the consequences of their decision.[^26]
[63] The patient must demonstrate the ability to appreciate the positive effects of treatment or the negative effects of a failing to engage in treatment.[^27] If he or she does not, then the patient may be unable to apply the relevant information to his or her circumstances and may be unable to appreciate the consequences of his or her decision.
[64] In D'Almeida v. Barron,[^28] the Court of Appeal emphasized that under s. 4(1) of the Health Care Consent Act, 1996, the focus is the patient’s capacity to consent to treatment. In D'Almeida v. Barron, the patient could not appreciate the consequences of non-treatment due to the nature of his mental illness. The patient recognized some of the negative effects of treatment, namely the side effects, but he had no appreciation of the positive effects of treatment or the negative effects of non-treatment. The patient believed that his healing was due to his own efforts and had nothing to do with the medication he had received.[^29] In the result, the Court of Appeal upheld the reviewing judge’s decision and the Consent and Capacity Board’s finding that the patient lacked the capacity to make treatment decisions.
F. Discussion and Analysis
[65] MR’s appeal which is entirely about alleged errors in findings of mixed fact and law is without merit.
[66] The Presiding Member of the Consent and Capacity Board carefully weighed the evidence and gave full and appropriate consideration to the testimony of MR and Dr. Mishra. The Adjudicator correctly stated and applied the test for capacity. No error much less a palpable and overriding error has been demonstrated.
[67] I disagree with MR’s submission that Dr. Mishra’s testimony was riddled with contradictions and conjecture. His clinical assessment of MR was abundantly substantiated and corroborated by the evidentiary record.
[68] Dr. Mishra did not give inconsistent evidence of MR’s propensity for violent, aggressive, socially inappropriate and dangerous behaviour. There is no inconsistency in (a) testifying that there was no history of physical harm to either individuals or property, and (b) testifying, as amply demonstrated by the medical records, that MR’s conduct was confrontational, threatening, and marked by episodes of vile conduct and violence, certainly to the extent that property was defiled, and persons were stalked, harassed, disturbed, and verbally abused.
[69] I disagree with MR’s submission that the Adjudicator accepted Dr. Mishra’s testimony that MR did not have insight into his condition without explaining this conclusion.
[70] The Adjudicator carefully considered MR’s testimony about his understanding of his mental illnesses and the benefits and risks of the drugs being prescribed in various dosages, and having heard this evidence, Dr. Mishra’s evidence, and having reviewed the hospitalization records, she explained why MR’s competency was belied by the actuality of the evidence.
[71] There was a long past history of MR of denying that he has schizophrenia, of denying any aberrant behaviour, of denying that he requires medication to treat his illness, of denying that the medication did anything helpful, and of blaming the medications as the source of his difficulties with the legal and health care systems. At the time of the hearing, very little of these circumstances had changed save that MR was now verbalizing that he knew he suffered from schizophrenia. There was ample evidence, however, to support the Adjudicator’s conclusion that notwithstanding this recent change in position, MR did not have the capacity to consent.
[72] There was ample corroboration for each of the Adjudicator’s conclusions. There was no palpable and overriding error or failure to consider relevant evidence or a consideration of matters not a part of the record in the Adjudicator’s conclusion that MR did not satisfy the second branch of the competency test.
[73] The evidentiary record and the Adjudicator’s reasons for decision do not – as contented by MR – demonstrate that she (a) was overly deferential to Dr. Mishra’s testimony; (b) was overly critical of MR’s testimony; (c) made findings that cannot be supported by any reasonable interpretation of the evidence; and (d) misapplied the law.
[74] There are no sustainable grounds of appeal of the Adjudicator’s findings of mixed fact and law.
G. Conclusion
[75] For the above reasons the appeal is dismissed without costs.
Perell, J.
Released: May 7, 2024
COURT FILE NO.: CV-24-00712839-0000
DATE: 20240507
ONTARIO
SUPERIOR COURT OF JUSTICE
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, Schedule A
AND IN THE MATTER OF MR a patient at Waypoint Centre for Mental Health Care, Penetanguishene, Ontario
BETWEEN:
MR
Appellant
-and-
DR. ACHAL MISHRA
Respondent
REASONS FOR DECISION
PERELL J.
Released: May 7, 2024
[^4] Pugliano v, Jones, 2024 ONSC 1377; Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759.
[^5] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
[^6] KM v. Agrawal, 2021 ONSC 5748 at paras. 80-81; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
[^7] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 5.
[^8] Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254 at para. 35.
[^9] KM v. Agrawal, 2021 ONSC 5748 at para. 82; (H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 55.
[^10] L. (H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at paras. 55, 56.
[^11] Starson v. Swayze, 2003 SCC 32
[^12] Almeida v. Morgan, 2020 ONSC 5066 at para. 31; Z. (Z.) v. Shafro, 2016 ONSC 6412 at para. 60.
[^13] Almeida v. Morgan, 2020 ONSC 5066 at para. 30; G., (Re), 2009 CarswellOnt 5267 (CCBd).
[^14] S.S. v. Mottaghian, 2021 ONSC 137 at para. 15; Starson v Swayze, 2003 SCC 32 at para. 19.
[^15] Neto v. Klukach, [2004] O.J. No. 394 at para. 11 (S.C.J.); Bartoszek v. Ontario (Consent and Capacity Board), [2002] O.J. No. 3800 at para. 20 (S.C.J.).
[^16] M.M. v. De Souza, 2016 ONCA 155 at para. 18; Giecewicz v. Hastings, 2007 ONCA 890 at para. 43, leave to appeal refused [2008] S.C.C.A. No. 97.
[^17] B.L. v. Pytyck, 2021 ONCA 67, aff’g 2020 ONSC 3766; K.M. v. Banik, 2020 ONSC 4829, aff’d 2021 ONCA 481; Starson v. Swayze, 2003 SCC 32.
[^18] 2003 SCC 32, at para. 78.
[^19] [2004] O.J. No. 394 at para. 12 (S.C.J.).
[^20] Starson v. Swayze, 2003 SCC 32 at para. 77.
[^21] Gligorevic v. McMaster, 2012 ONCA 115 at para. 8.
[^22] Starson v. Swayze, 2003 SCC 32 at para. 79.
[^23] Khan v. St. Thomas Psychiatric Hospital (1992), 1992 CanLII 7464 (ON CA), 7 O.R. (3d) 303 at pp. 314-5 (C.A.).
[^24] B.L. v. Pytyck, 2021 ONCA 6 at para. 26, aff’g 2020 ONSC 3766; Murray v. Alatishe, 2019 ONCA 596; Armstorng v. Coleman, 2015 ONSC 2919; Masih v. Siekierski, 2015 ONSC 2877; Gajewski v. Wilkie, 2014 ONCA 897; D'Almeida v. Barron, 2010 ONCA 564, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 511; Giecewicz v. Hastings, 2007 ONCA 890. leave to appeal refused, [2008] S.C.C.A. No. 97.
[^25] [2008] O.J. No. 4205 at para. 24 (S.C.J.), aff’d 2009 ONCA 437.
[^26] See also: K.M. v. Banik, 2020 ONSC 4829, aff’d 2021 ONCA 481; Edem v. Kantor, 2020 ONSC 4729; Woods v. Chatterjee, 2018 ONSC 73; Pararajasingham v. Druss, 2016 ONSC 1135; M.M. v. De Souza, 2016 ONCA 155; Masih v. Siekierski, 2015 ONSC 2877; Starson v. Swayze, 2003 SCC 32 at para. 79; Khan v. St. Thomas Psychiatric Hospital (1992), 1992 CanLII 7464 (ON CA), 7 O.R. (3d) 303 (C.A.).
[^27] K.M. v. Banik, 2020 ONSC 4829, aff’d 2021 ONCA 481; Edem v. Kantor, 2020 ONSC 4729 at para. 17; D'Almeida v. Barron, 2010 ONCA 564 at paras. 25-26.
[^28] 2010 ONCA 564, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 511.
[^29] See A.S. v. Sum, 2021 ONSC 4296 at para. 38.