Ontario Superior Court of Justice

Court File No.: CV-24-1212
Date: 2025/03/27

In the Matter of an Appeal from a Decision of the Consent and Capacity Board, Pursuant to the Health Care Consent Act and the Mental Health Act

And in the Matter of G.T., a Patient Subject to a Community Treatment Order

Between:
G.T., Appellant
– and –
Dr. Olusegun Omoseni, Respondent

Before: C.D. Braid

Matthew Stroh, Counsel for the Appellant
David Isaac, Counsel for the Respondent
Heard: October 31, 2024 and Written Submissions

Reasons on Appeal

I. Overview

[1] The Appellant, G.T. (“the Appellant”), has a long history of mental illness, including schizoaffective disorder (bipolar-type) and cannabis disorder. He was subject to a Community Treatment Order (“CTO”) under the Mental Health Act, pursuant to which he was put on a Community Treatment Plan (“CTP”) by Dr. Olusegun Omoseni, the Appellant’s physician.

[2] The Appellant appeals from the June 20, 2024 decision of the Consent and Capacity Board (“the Board”). The Appellant argues that the Board committed a palpable and overriding error when it confirmed that the criteria for issuing his CTO were met. More specifically, the Appellant takes issue with whether there was informed consent and states that the Board relied on uncorroborated hearsay in concluding that the Appellant’s Substitute Decision Maker (“SDM”) consented to the terms of the CTP.

[3] The Appellant’s Notice of Appeal states that the Board erred in finding that Dr. Omoseni had met his onus to rebut the presumption that the appellant was capable with respect to consenting to the terms of his CTP under the HCCA. However, the Appellant’s counsel did not make any submissions on this issue, either in his factum or during oral submissions. I therefore decline to address this issue in these reasons.

[4] The issues to be determined on this appeal are as follows:

A. Should the Appellant’s name be anonymized in this decision?
B. What is the standard of review for appeals from the Consent and Capacity Board?
C. Did the Board make a palpable and overriding error?

[5] For the reasons set out below, the appeal is dismissed.

II. Background

[6] A CTO’s purpose is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. The CTO provides a plan for a person who, because of their serious mental disorder, experiences a pattern of having their condition stabilized at a psychiatric facility and then stopping their treatment or care and supervision after being released, which changes their condition and requires them to be re-admitted to a psychiatric facility: MHA s.33.1(3)

[7] The Appellant is a single 39-year-old male with no dependents. At all material times, he was unemployed and financially supported by the Ontario Disability Support Plan. The Appellant has previously been diagnosed with schizoaffective disorder (bipolar-type) and cannabis disorder. He has a long history of mental illness and psychiatric admissions, dating back to December 2010, with approximately nine hospitalizations and two previous CTPs. The Appellant's mother serves as his SDM.

[8] The Appellant’s most recent series of psychiatric admissions began on April 5, 2024, when he was admitted to Grand River Hospital. Dr. Omoseni believed that, if the Appellant did not receive continuing treatment or care and continuing supervision under the authority of a CTO while living in the community, he was likely to stop taking his medications and suffer substantial mental deterioration because of his mental illness.

[9] The Appellant was placed on a CTP on April 29, 2024, and discharged from the hospital on April 30, 2024. Following his discharge, he missed a scheduled antipsychotic injection and psychiatric assessment, and a Form 47 under the MHA was issued. The police were subsequently alerted to his inappropriate behaviour. He was readmitted to the hospital on May 21, 2024, until his discharge on June 7, 2024.

III. Decision of the Board

[10] The Board convened a hearing to review the finding of incapacity with respect to the CTP and to review whether the criteria contained in the MHA for issuing the CTO were met. At the hearing, the Board heard the oral testimony of Dr. Omoseni and received his Physician’s Brief as an exhibit. The Board released its Decisions on June 20, 2024, and provided written Reasons on June 27, 2024. The Board held that:

1. The criteria for renewing a CTO, as set out in s. 33.1(4) of the MHA were satisfied and the CTO was confirmed; and
2. There was informed consent to the CTP as per s. 11 of the HCCA.

IV. Analysis

A. Should the Appellant’s Name be Anonymized?

[11] The parties jointly seek an order that this decision be reported by using initials in the title of proceedings and in any reporting of the case. This Court has jurisdiction to use pseudonym initials to protect the identity of parties in civil proceedings: Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 135, 137; Rules of Civil Procedure, R.S.O. 1990, Reg. 194, Rules 2.03 and 14.06.

[12] Section 135 of the Courts of Justice Act states that all court hearings shall be open to the public. This is subject to situations where the possibility of serious harm or injustice to any person justifies a departure from the open court principle.

[13] Every originating process shall contain a title of the proceeding setting out the names of all the parties: Rules of Civil Procedure, RRO 1990, Reg 194, s. 14.06. The Court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time: Rules of Civil Procedure, RRO 1990, Reg 194, s. 2.03.

[14] The open court principle is protected by the right of freedom of expression and is a central feature of a liberal democracy such that there is a strong presumption favouring open courts. However, there are exceptional circumstances where the open court principle presents a serious risk to a competing public interest. These interests can include dignity: Sherman Estate v. Donovan, 2021 SCC 25 at paras 1-4, 7, 30 & 46 [Sherman Estate].

[15] A party requesting a confidentiality order must establish that:
(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(3) as matter of proportionality, the benefits of the order outweigh its negative effects.
*Sherman Estate*, at para 38.

[16] Preserving the dignity of persons involved is a public interest. The loss of control over fundamental personal information about oneself is damaging to dignity because this erodes one’s ability to present aspects of oneself to others in a selective manner. The loss of one’s dignity could have real human consequences, including psychological distress: *Sherman Estate* at paras 68, 71-72.

[17] I agree with and adopt the reasoning of Leiper J. in S.B.J. v. Ali, 2023 ONSC 4515 at paras. 3-4, which was an appeal decision from a Consent and Capacity Board Decision. Justice Leiper held that the patient’s name would be anonymized. I find that, on balance, the order sought in this case protects the Appellant's privacy concerning intimate personal health information without unduly restricting the open court principles as recently affirmed by the Supreme Court of Canada in *Sherman Estate v. Donovan*, 2021 SCC 25 at para 30. These proceedings and findings are public. Only the name will be protected from publication by use of anonymization.

B. What is the Standard of Review for Appeals from the Consent and Capacity Board?

[18] The presumptive standard of review is reasonableness for administrative decisions. It is rebutted where there is an appeal mechanism from an administrative tribunal to a court: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, paras. 16-17.

[19] There is a statutory right of appeal from a decision of the Consent and Capacity Board to the Superior Court of Justice on questions of law, fact, or both: s. 48(1) and (3) of the MHA and s. 80 of the HCCA.

[20] Where the legislature provides a statutory appeal mechanism from an administrative decision, the court must apply the appellate standard of review, as determined by the nature of the question and applicable jurisprudence. Questions of law are reviewable on a correctness standard. Questions of fact and questions of mixed fact and law without an extricable error of law, are reviewed for palpable and overriding error: see *Vavilov*, at paras. 10, 16-17, 23, 25 and 36-37.

[21] The issues raised in this appeal involve findings of fact and questions of mixed fact and law. Therefore, the standard of review on this appeal is palpable and overriding error. Absent a palpable and overriding error, an appellate court must refrain from interfering with those findings: see Housen v. Nikolaisen, 2002 SCC 33, paras. 37, 52, 56 and 58; and Hydro-Québec v. Matta, 2020 SCC 37 at para. 33.

[22] The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. An error is palpable if it is obvious, plainly seen, and if all the evidence need not be reconsidered in order to identify it. An error is overriding if it has affected the result and is sufficiently significant to vitiate the challenged finding of fact: Hydro-Québec v. Matta at para 33; Waxman v. Waxman at paras. 296-297.

C. Did the Board Make a Palpable and Overriding Error?

[23] The Appellant’s SDM, his mother, signed the CTP on April 29, 2024. Whether her consent to the CTP was informed is at issue on this appeal.

[24] Section 33.1(4) of the MHA states that a physician may issue or renew a CTO if the SDM consents to the CTP in accordance with the rules for consent under the HCCA.

[25] Consent to treatment must be informed. Section 11 of the HCCA sets out the criteria for informed consent:

(2) A consent to treatment is informed if, before giving it,
(a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and
(b) the person received responses to his or her requests for additional information about those services.
(3) The matters referred to in subsection (2) are:

1. The nature of the treatment.
2. The expected benefits of the treatment.
3. The material risks of the treatment.
4. The material side effects of the treatment.
5. Alternative courses of action.
6. The likely consequences of not having the treatment: HCCA s.11(1)-(3).

[26] The Appellant argues that the Board made a palpable and overriding error in determining that the criteria for issuing the appellant’s CTO were met under the MHA. The Appellant claims that the Board erred because the CTP did not accurately reflect the treatment plan, and therefore the SDM did not consent to the treatment. Secondly, the Appellant argues that the Board made a palpable and overriding error when it relied on uncorroborated hearsay in concluding that the Appellant’s SDM consented to the terms of the CTP. Finally, the Appellant states that the Board erred in accepting Dr. Omoseni’s evidence that a discussion took place with the SDM when it was not documented. I shall address each of these issues in turn.

C.1 The Board did not err in finding that there was informed consent even though the CTP did not accurately reflect the treatment plan

[27] The Appellant specifically takes issue with whether there was informed consent on the part of his SDM to effect the CTO and the CTP. The Appellant claims that the CTP that was signed by the SDM did not accurately reflect the treatment plan.

[28] The Appellant points out that the CTP was inconsistent with Dr. Omoseni’s own contemporaneous clinical notes and records. The CTP states that the injectable antipsychotic medication was to be administered every 28 days. However, Dr. Omoseni conceded that the dose of the injection was technically increased by reducing the interval between the Appellant’s injections to every 21 days and stated that the notation of 28 days was an administrative error. In addition, the Appellant’s discharge summary stated that he was to receive his oral medications at bedtime, even though the CTP was silent regarding the requirement to take oral medications.

[29] A substitute decision maker need not be physically present to obtain informed consent: Sprague v. Her Majesty the Queen in Right of Ontario, 2020 ONSC 2335 at para. 41.

[30] The CTP stated that the SDM could consent to changes in the treatment plan. Dr. Omoseni testified that he had ongoing contact with the SDM and that she consented to the treatment as set out in the discharge summary. Although there may be inconsistencies between the CTP and the discharge summary, the evidence before the Board demonstrated that the SDM was properly informed and consented to the changes, as follows:

a) Dr. Omoseni testified that, when he spoke to the Appellant’s SDM over the phone prior to her signing the CTP on April 29, 2024, he told her that: (1) the frequency of the Appellant’s injections was between three to four weeks; and (2) his plan was to temporarily augment the Appellant’s treatment with oral medications over a 30-day period.

b) During the May 21, 2024 admission, the Appellant received the injectable antipsychotic at a dose of 100mg at three-week intervals while taking oral antipsychotic medication daily. Dr. Omoseni’s note states:

With the increased dose of Invega patient was found to have less disorganization, [less] inappropriate behaviour of following… females around the unit, was able to take advantage of on and off unit privileges with his mother before independent off unit privileges and day passes at home. Mother confirmed that his behaviour had normalized during the passes. [Emphasis added].

[31] In their decisions, the Board found that Dr. Omoseni had established informed consent under s. 33.1(4)(f) of the MHA. First, the Board recognized that the SDM signed the CTP on April 29, 2024, signifying her consent to the CTP. It also noted that the CTP itself acknowledged the possibility of the necessity for changes or adjustments to the Appellant’s prescribed antipsychotic medications, which changes were required to be made with consent of the SDM. The Board made the following findings:

Dr. Omoseni testified that, firstly, he had spoken with the SDM and, secondly, that he had specifically advised her of the changes to GT’s medications as set out in the Discharge Summary. This discussion, according to Dr. Omoseni, took place in advance of the SDM signing the CTP. In response to a question from a panel member, Dr. Omoseni indicated that his conversation with the SDM took place either on April 25 or on April 26, 2024. Although Dr. Omoseni was unable to produce a note to confirm that he had documented this conversation with the SDM, the panel accepted his oral evidence in this regard. The panel found his evidence to be credible and reliable, and his explanation of the administrative error in relation to the injection intervals was plausible.

The panel accepted Dr. Omoseni’s evidence that he had discussions with the SDM prior to the SDM signing the CTP, and that the SDM was made aware of the actual frequency of the injectable medication and the requirement of a temporary augmentation of oral medication.

[32] The Board was satisfied that the SDM’s consent to the CTP was informed consent prior to signing the CTP. The Board did not commit a palpable and overriding error when coming to that conclusion.

C.2 The Board did not rely on uncorroborated hearsay

[33] The Appellant argues that the Board relied upon uncorroborated hearsay in coming to its conclusions. The Appellant submits that a physician’s onus of showing informed consent should not rest solely on uncorroborated hearsay evidence. However, the Appellant’s submission misconstrues the nature of Dr. Omoseni’s evidence on this issue.

[34] Dr. Omoseni’s evidence regarding the SDM’s consent falls into two categories:

a. Dr. Omoseni’s non-hearsay evidence regarding what he said to the SDM

[35] Dr. Omoseni’s evidence regarding what he himself said to the SDM was not hearsay. Hearsay is a statement made out-of-court adduced for the truth of its contents: R. v. Baldree, 2013 SCC 35 at para. 30. Dr. Omoseni’s evidence was made before the Board regarding something he himself did or said. His evidence regarding what he told the SDM was not hearsay.

[36] The Board heard direct oral evidence (non-hearsay) from Dr. Omoseni that:

• He spoke with the SDM about the CTP (which was signed April 29, 2024) on or about April 25 or 26, 2024;
• He explained to the SDM that the frequency of the dosage would be three to four weeks;
• He explained that oral medication would be used to supplement the injections and to help control side effects; and,
• He spoke with the SDM when she picked up the Appellant for his passes where he was temporarily released from the hospital.

[37] The discharge note dated June 7, 2024 was before the Board, and shows that Dr. Omoseni spoke with the SDM about the Appellant’s behavioural response to the increased dose of medication.

[38] Accordingly, the Board did not make a palpable and overriding error in relying on Dr. Omoseni’s evidence in reaching the conclusion that the SDM gave informed consent to the CTP.

b. Dr. Omoseni’s hearsay evidence regarding statements of SDM

[39] Dr. Omoseni did not call the Appellant’s SDM to testify before the Board at the Hearing.

[40] Dr. Omoseni’s evidence regarding what the SDM told him, namely that the SDM agreed with the CTP, was hearsay. This hearsay evidence is corroborated by the SDM’s signature on the CTP dated April 29, 2024 (several days after the date on which Dr. Omoseni said the consent discussion occurred). It is also corroborated by the discharge note which states that the SDM noticed an improvement in the Appellant’s behaviour after the medication was changed.

[41] Hearsay evidence is admissible at a hearing before the Board under s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Hearings must be conducted in an expeditious manner to ensure that treatment decisions can be made without undue delay. To fulfill that mandate, the Board will often be forced to rely on hearsay evidence to become fully informed of a patient’s circumstances. The weight to be accorded to such evidence is normally a matter that is left to the discretion of the Board. Nonetheless, the Board must be careful to avoid placing undue emphasis on uncorroborated evidence that lacks sufficient indicia of reliability: Starson v. Swayze, 2003 SCC 31 at para. 115.

[42] The Appellant has not claimed that the SDM did not consent to the substance of the CTP, only that her consent was not properly informed. Indicia of reliability includes being “actively in touch” with the person who provided the evidence. The Appellant was represented by counsel who has had an opportunity to cross-examine Dr. Omoseni. In this case (a) Dr. Omoseni was actively in touch with the SDM; (b) The Appellant was represented by counsel; and (c) Dr. Omoseni was cross examined by counsel. As such, there were sufficient indicia of reliability for the Board to give weight to Dr. Omoseni’s evidence, to the extent that it was hearsay.

[43] Dr. Omoseni testified that the SDM understood and accepted the timing and dose of the medication, as well as the reason for using injectable and oral medication. While this evidence was hearsay, it had sufficient indicia of reliability for the Board to rely on it.

[44] Accordingly, the Board made no palpable or overriding error in relying on Dr. Omoseni’s hearsay evidence that the SDM consented to the CTP following the consent discussion.

C.3 The Board did not err in accepting Dr. Omoseni’s evidence that a discussion took place with the SDM when it was not documented

[45] The Appellant submits that the Board erred in accepting Dr. Omoseni’s evidence that a discussion took place with the SDM when it was not documented in the physician’s notes. I do not accept this submission. The Board was entitled to rely on Dr. Omoseni’s evidence that the conversation took place. There is no requirement, in law or otherwise, that the Board cannot accept the verbal evidence of a physician if there is no documentation to support that position.

V. Conclusion

[46] The Appellant has not established that the Board made a palpable and overriding error. For all of these reasons, the appeal is dismissed.

[47] The parties agree that no order for costs should be made.

Braid, J.
Released: March 27, 2025