Ontario Superior Court of Justice

Court File No.: CV-24-706
Date: 2025/04/14

BETWEEN:
G.P., Appellant
– and –
Dr. Bakri Elymani, Respondent

Piet de Jong, Counsel for the Appellant
Meghan Payne, Counsel for the Respondent

Heard: July 22, 2024
Justice: I.R. Smith

Reasons for Judgment

Introduction

1. The appellant appealed against a community treatment order (“CTO”) issued by the respondent physician, and against the decision of the Consent and Capacity Board (the “Board”) confirming the CTO. In an earlier endorsement, before the CTO expired, I dismissed the appeal with reasons to follow, which reasons I provide now.

Background

2. The Mental Health Act, R.S.O. 1990, c. M-7 (the “Act”), at subsection 33.1(3), describes the purposes of a CTO as follows:

(3) The purpose of a community treatment order 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. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility.

3. The appellant is a man in his 30’s who lives with schizophrenia and cannabis use disorder. He experiences paranoid delusion, auditory hallucinations, and psychosis. When not hospitalized, he lives alone in an apartment. He denies his mental illness and therefore refuses antipsychotic medication prescribed to him. However, when CTOs have been in place, he has taken his medication. When not subject to a CTO, both his physical and mental health deteriorate significantly.

4. On February 2, 2024, the appellant was brought to the Grand River Hospital (“GRH”) by police, who had received a report that the appellant had been carrying two large knives. At that time, the appellant was experiencing psychosis and delusions. The respondent became involved in the care being provided to the appellant and he determined that the appellant required continued supervision while living in the community, otherwise the appellant’s paranoia would worsen, and he would pose a safety risk to himself or others.

5. On February 13, 2024, the respondent examined the appellant and concluded that the criteria for a CTO (found in s. 33.1(4) of the Act) were met. He created a community treatment plan (“CTP”), which is a required part of a CTO (s. 1(1) of the Act).

6. The appellant sought to review the decision to issue a CTO at the Board. After a hearing, the Board confirmed that the criteria for a CTO had been met. These criteria include that the patient has been advised of his legal rights (s. 33.1(4)(e)). The Board also heard and dismissed several motions made by the appellant, through which the appellant asked the Board to exercise its discretion under s. 39.1(7) of the Act to revoke the CTO even though the criteria in s. 33.1(4) had been met. It is the dismissal of one of these motions which is the foundation for the appeal to this court.

7. The appeal concerns an alleged failure of the respondent to follow the procedure set out in s. 33.1(10)(c) of the Act, which provides that the physician who issues or renews a CTO “shall ensure that a copy of the order, including community treatment plan, is given to … (c) the officer in charge, where applicable.” As the Board noted, the facts on this issue were not in dispute: neither the CTO nor the CTP were provided to an officer in charge (“OIC”) at the GRH where the appellant was an in-patient. There was evidence before the Board in the form of an email from the Program Director of the GRH, that the hospital “did not and currently does not have an OIC process for [CTOs] and [CTPs]. It was not part of GRH’s process and policy for a CTO/CTP issued in respect of a patient of GRH to be provided to the OIC.” [1]

8. The appellant took the position that the words “where applicable” in s. 31.1(10)(c) of the Act refer to a situation where the subject of the CTO was an in-patient at the time the CTO was issued. Since the appellant was an in-patient at the time of the issuance of the CTO, it ought to have been provided to an OIC.

9. The respondent took the position that the words “where applicable” refer to situations where the hospital in question has appointed an OIC to receive and review CTOs. Since there was no OIC at GRH to receive the CTO at the time the CTO was issued, the requirement to provide a CTO to an OIC was not “applicable.”

10. The Board found that these competing definitions of the phrase “where applicable” were both reasonable and that in the absence of further evidence of the intention of the legislature it was unable to determine which definition should prevail. Instead, the Board assumed that the definition favoured by the appellant was correct and that the failure to provide the CTO to the OIC was a breach of s. 33.1(10)(c). The Board nevertheless declined to exercise its discretion to revoke the CTO pursuant to s. 39.1(7) of the Act, as that discretion ought to be used “sparingly and cautiously.” The Board found that the respondent acted in good faith and otherwise followed “all procedural steps.” It concluded as follows:

… even if the actions of [GRH] were a breach of Section 31.1(10)(c) of the [Act], which was not expressly found, such breach was not sufficient for the Board to use its residual authority to revoke the CTO under Section 39.1(7) of the [Act].

Positions of the Parties

11. The appellant makes again the arguments he made before the Board. In particular, he argues that the failure to provide the CTO respecting an in-patient to the OIC represents a “fatal flaw” in a process designed to protect the patient and that this flaw necessarily leads to a conclusion that the CTO should have been revoked by the Board.

12. The respondent argues that the Board made no error. On the contrary, it correctly observed that the discretion to revoke a CTO pursuant to s. 39.1(7) of the Act should be used sparingly and cautiously. Here, assuming there was a failure to follow the Act, that failure resulted in no prejudice whatever to the appellant. This was, therefore, not a case in which to revoke the CTO.

Standard of Review

13. Section 80(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, provides a right of appeal to this court from Board decisions on “a question of law or fact or both.” The parties agree that this appeal raises a question of mixed fact and law and, therefore, that the standard of review is a palpable and overriding error: K.M. v. Agrawal, 2021 ONSC 5748, at paras. 77–84; G.B. v. Rathitaran, 2024 ONSC 1871, at paras. 35–36.

Discussion

14. In this court, the parties renew their competing interpretations of the phrase “where applicable” in s. 31.1(10)(c) of the Act. The appellant relies on prior Board decisions in which CTOs were revoked due to failures to provide a copy of the CTO to the OIC (e.g.: Re M.S.) or because the OIC failed to review the CTO once it was given to them (e.g.: Re A.D.); or because the hospital had failed to develop a process for providing CTOs to an OIC (e.g.: Re D.B.). The appellant points to language in these and other cases emphasizing the mandatory nature of s. 33.1(10)(c) and the importance of the provisions of the Act (including s. 33.1(10)(c)) intended to protect the interests of the patient, including the patient’s liberty and right to self-determination.

15. As the respondent argues, however, the Board proceeded on the assumption that the appellant’s interpretation of the Act was correct. As the respondent also observes (and the appellant concedes), the decisions of prior panels of the Board, acting on the evidence which was before them, were not binding on the panel in this case (Re E.O.). Further, the Act imposes no burden on the OIC who receives a CTO to do anything other than to receive it. Again, the appellant concedes that there is authority for this proposition (e.g.: Re A.G., where the Board contrasted s. 33.1(10) with s. 20(8) of the Act which expressly requires the OIC to review a certificate of involuntary admission).

16. The question before me, then, is whether the Board made a palpable and overriding error when it exercised its discretion not to revoke the CTO in this case bearing in mind that the Board was not bound by any prior decision of the Board, assumed the correctness of the statutory interpretation urged by the appellant, and was considering a section of the Act which, on its face, requires no more than that the OIC receive a copy of the CTO.

17. As noted above, the criteria for a CTO are found in s. 33.1(4) of the Act. The Board found in this case that the respondent had established that those criteria had been met. That substantive conclusion is not attacked on appeal. Instead, the appellant alleges error in the Board’s consideration of its discretion, found in s. 39.1(7) of the Act, [2] to confirm or revoke the CTO where the criteria in s. 33.1(4) have been met.

18. That discretion was considered by Myers J. in Kanama v. Weinroth, 2022 ONSC 2748. He noted (at para. 19), as did the Board in this case, that the discretion afforded in s. 39.1(7) of the Act should be exercised “sparingly and cautiously.” The Board itself has described its discretion as restricted to “rare and exceptional” cases where “the issuance of a CTO would be demonstrably unconscionable for some reason extraneous to the criteria contained in s. 33.1(4)”: Re G.E.. Such cases have typically included consideration of the cumulative effect of various errors and/or where severe prejudice to the patient’s rights was established: Re M.G.. Less significant errors will lead the Board to exercise its discretion in favour of confirming the CTO: see, for example, Re A.R..

19. In this case, the Board distinguished the failure to provide a copy of the CTO to an OIC with cases like Kanama, where “a confluence of failures” led Myers J. to allow an appeal from a Board decision to confirm a CTO. By contrast, the Board here concluded that the GRH had acted in good faith and had not acted unreasonably. In these circumstances, the failure to abide by s. 33(10)(c) was “not sufficient for the Board to use its residual authority to revoke the CTO under s. 39.1(7)” of the Act.

20. In my view, this reasoning betrays no error, palpable and overriding or otherwise. On the evidence before the Board, all criteria for the issuance of a CTO had been met. In other words, the appellant was confirmed to be a person in need of treatment under the authority of a CTO, and had been advised of his legal rights. The only failing in this case, where there was a finding of good faith and reasonable conduct on the part of the respondent and the GRH, was the failure to provide a copy of the CTO to the OIC whose only role would have been to receive the document. In all these circumstances, and bearing in mind the purpose of a CTO described in s. 33.1(3), which I quoted above, the Board’s decision to exercise its discretion by confirming the CTO was reasonable.

21. The appeal is therefore dismissed.

Footnotes

[1] In addition, in response to written questions from counsel to the applicant, GRH indicated that “we do not have an OIC declared here for CTOs.”

[2] That subsection reads as follows (emphasis added): “The Board may, by order confirm the issuance or renewal of the [CTO] if it determines that the criteria mentioned in subsection (6) are met at the time of the hearing, but, if the Board determines that those criteria are not met, it shall revoke the [CTO].” I note that subsection (6) refers to the criteria in s. 33.1(4) of the Act.

Released: April 14, 2025