Hastick v. Banik, 2025 ONSC 3007

Court File No.: CV-24-5429
Date of Judgment: 2025-05-21
Ontario Superior Court of Justice

Between:
Arlene Hastick, Appellant (Self-represented)
and
Dr. Tapan K. Banik, Respondent (M. Kotob, for the Respondent)

Heard: 2025-04-24
Ruling on Appeal
Mirza J.

Overview

[1] This Appeal arises from a decision of the Consent and Capacity Board (the Board) dated November 13, 2024 after a mandatory hearing on November 4. The Board’s decision confirmed that the conditions for renewing the Community Treatment Order (CTO) for the Appellant, Arlene Hastick, dated October 16, 2024, expiring April 15, 2025, were met.

[2] Ms. Hastick primarily disputes the Board’s determination that she suffers from a mental disorder, namely schizophrenia, requiring continuing supervised medical treatment via a community treatment plan that requires injections of anti-psychotic medication every 4 weeks with visits to her psychiatrist Dr. Banik. As part of the treatment plan or CTO, if she does not comply with the obligations of the plan, a form 47 will be issued for her apprehension by the police.

[3] In April 2016, following a hospital admission in Brampton, Ms. Hastick was placed on a CTO. She has been subject to a CTO ever since. She has not been hospitalized again since that time while receiving treatment under the renewed CTOs.

[4] The Respondent, Dr. Banik, has been her outpatient psychiatrist and supervised her since her last admission to hospital in 2016.

[5] On October 8, 2024, Ms. Hastick met with Dr. Banik to assess her for the purposes of renewing her CTO. At that time, Ms. Hastick was a single female, 53 years old, who resided alone in a rented room in Brampton, Ontario. She had been working recently in two jobs.

[6] Dr. Banik determined that the criteria for renewing her CTO were met. Further, Dr. Banik found that she remained incapable of making her own treatment decisions with respect to treatment with antipsychotic medications and the CTO as she could not appreciate the reasonably foreseeable consequences of her treatment or lack of treatment.

[7] On October 15, 2024, Ms. Hastick applied to the Board to challenge the CTO. Ms. Hastick did not challenge Dr. Banik’s finding of incapacity. Her mother is her substitute decision maker.

[8] The hearing before the Board proceeded on November 4, 2024.

[9] The Board’s decision dated November 4, 2024 confirmed Dr. Banik’s finding that the conditions for renewing the CTO were met.

[10] Ms. Hastick now brings this within appeal and seeks an Order from the Court quashing the Board’s decision and finding that the criteria for renewing the CTO were not satisfied. She is self-represented.

[11] For the reasons that follow, I grant the appeal and order a new hearing.

Positions

[12] Ms. Hastick submits she no longer requires a CTO and the Board erred in finding that the criteria for issuing or renewing the CTO as set out in the Mental Health Act, R.S.O. 1990, c. M.7, were not satisfied at the time of the hearing. She requests that the CTO, which came into effect on October 16, 2024, and expires on April 15, 2025, not be confirmed.

[13] Ms. Hastick disputes the Board’s finding that she was suffering from a mental disorder at the time of the hearing that requires continuing supervised treatment. She argues that hearing the voice of God in 2016 was not delusional but part of a religious experience. She believes that she does not currently have schizophrenia.

[14] She also submits that her education background, employment history, and financial capability of purchasing and managing real estate properties demonstrates her capacity and a lack of mental illness.

[15] Counsel for Dr. Banik requests that the decision of the Board be upheld. It is submitted that the Board identified the proper legal test and statutory criteria when considering the CTO. The Board properly applied the legal test to the available evidence and there was sufficient evidence before the Board to support the finding that the conditions for renewing the CTO were met.

The Law

Community Treatment Order – Mental Health Act (MHA)

[16] Sections 33.1(4) of the MHA sets out the applicable statutory criteria and section 39.1 provides a mechanism for review of a CTO:

Community treatment order

33.1 (1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met.

(2) The community treatment order must be in the prescribed form.

(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.

(4) A physician may issue or renew a community treatment order under this section if,

(a) During the previous three-year period, the person,

(i) Has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(ii) Has been the subject of a previous community treatment order under this section;

(b) The person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;

(c) Within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i) The person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) The person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) If the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv) The person is able to comply with the community treatment plan contained in the community treatment order, and

(v) The treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d) The physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e) Subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(f) The person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996.

Application for review by person subject to community treatment order

39.1 (1) A person who is subject to a community treatment order, or any person on his or her behalf, may apply to the Board in the approved form to inquire into whether or not the criteria for issuing or renewing a community treatment order set out in subsection 33.1 (4) are met.

(2) An application under subsection (1) may be made each time a community treatment order is issued or renewed under section 33.1.

(3) When a community treatment order is renewed for the second time and on the occasion of every second renewal thereafter, the person shall be deemed to have applied to the Board in the approved form under subsection (1) unless an application has already been made under that subsection.

Statutory Appeal Rights

[17] Section 48(1) of the MHA provides for a right of statutory appeal.

[18] 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.

[19] Section 48(3) of the MHA states that the appeal provided in section 80 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, (HCCA) applies to an appeal commenced under section 48(1) of the MHA.

[20] Section 80(1) of the HCCA states:

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.

Powers of court on appeal

(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.

Standard of Review

[21] A Board’s decision that deals with questions of fact will be reviewed on a standard of palpable and overriding error. The standard of palpable and overriding error applies where the legal principle is not readily extricable.

[22] Questions of pure law will be subject to a standard of correctness. Questions of mixed fact and law are subject to the nature of the error and to jurisprudence on appellate standards of review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para 37.

[23] Where an error can be attributed to the application of an incorrect legal standard, such as a failure to consider a required element of a legal test, or similar error in principle, the standard of correctness applies.

[24] Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule is that where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, para 36.

[25] In cases involving review of Board decisions, the Supreme Court held in Starson v. Swayze, 2003 SCC 32, paras 84-88, that a reasonableness standard applies, while acknowledging the broad statutory rights of appeal:

84 The question under review is the Board’s determination of capacity. This is a question of mixed fact and law: the Board must apply the evidence before it to the statutory test for capacity. In the absence of any error in law, this question is relatively fact-intensive: see Southam, supra, at paras. 35-37. Applying the pragmatic and functional approach to this question, it is clear that reasonableness is the appropriate standard of review.

85 On the one hand, the Act provides a broad right of appeal to the Ontario Superior Court of Justice on a question of fact or law or both: s. 80(1). The court is given broad powers of review: it may exercise all the powers of the Board, substitute its opinion for that of the Board, or refer the matter back to the Board for rehearing: s. 80(10). As well, capacity hearings are primarily adjudicative in nature. The Board’s sole task is to determine the patient’s capacity to consent. This matter is important to a patient’s autonomy. Each of these factors counsels against a deferential standard of review: see Dr. Q, at paras. 27 and 32.

86 On the other hand, the Board is likely to enjoy some measure of institutional expertise with respect to determinations of capacity. The Act does not specify any minimum qualifications for Board members, apart from instances in which a member sits alone: ss. 71(3) and 73(2). The statute merely stipulates that members are to be appointed by the Lieutenant Governor in Council: s. 70(2). However, unlike the usual reviewing court, Board members are likely to have acquired experience over the course of their appointments in dealing with assessments of capacity. The Board is uniquely positioned to hear the viva voce evidence of the patient and physicians. These factors suggest that determinations of capacity should generally be entrusted to the relative expertise of the Board: see Dr. Q, supra, at paras. 29 and 38.

87 As well, a principal aim of the Act is to facilitate treatment for incapable patients: s. 1. To achieve this aim, determinations of capacity must be made expeditiously to avoid delays in treatment. The Act ensures that the Board is well-suited to this task. The Board is required to begin a hearing within seven days of receiving an application and must decide the application by the day after the hearing ends: s. 75. If a party requests reasons for the Board’s decision, the Board must provide such reasons within two business days of the request. A court’s de novo review of the Board’s findings would immeasurably delay the outcome of treatment decisions. Such delay would frustrate the Act’s purpose.

88 These countervailing factors call for review of the Board’s determination of capacity on a reasonableness standard. The standard of reasonableness “involves respectful attention, though not submission” to the Board’s reasons: see Law Society of New Brunswick v. Ryan, 2003 SCC 20, para 49. An unreasonable decision is one that “is not supported by any reasons that can stand up to a somewhat probing examination”: see Southam, supra, at para. 56.

[26] Similarly, the Court of Appeal held in S.S. v. Kantor, 2017 ONCA 828, para 18, that decisions of the Board applying the law to the evidence involve mixed questions of fact and law, which are subject to review on the reasonableness standard: see e.g. Starson, at para. 84; M.M. v. de Souza, 2016 ONCA 155, para 12; and Giecewicz v. Hastings, 2007 ONCA 890, para 13.

Analysis

[27] Pursuant to HCCA, s. 80(10)(c), I refer the matter back to the Board for rehearing before a differently constituted panel. This is because the panel at the hearing of November 4, 2024 denied Ms. Hastick a fair hearing and opportunity to be heard fully. Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission), [1995] 2 S.C.R. 781, para 29.

[28] It is a fundamental principle of natural justice that in the course of the proceeding, the panel for the Board must allow persons whose rights and interests may be affected to be heard and to fairly present their points of view: audi alteram partem.

[29] In A.(L.L.) v. B.(A.), [1995] 4 S.C.R. 536, para 27, the Supreme Court states that the right to be heard, also known as the audi alteram partem principle, is a rule of natural justice and one of the tenets of our legal system, that requires that courts provide an opportunity to be heard to those who will be affected by the decisions.

[30] A failure to adhere to this principle is an error in principle and exceeds the Board’s jurisdiction. Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219. See also, Ontario Divisional Court decision in Sbrissa v. Ontario Association of Architects, 2021 ONSC 2087, para 8.

[31] The right to a fair hearing is regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643.

[32] At the November 4, 2024 hearing, the Board was composed of Mr. Hanbidge, senior lawyer, Dr. Corey, psychiatrist member, and Mr. Duggan, public member.

[33] My review of the transcript establishes that Mr. Hanbidge, the senior lawyer on the panel, repeatedly prevented Ms. Hastick, a self-represented litigant, from asking reasonable and relevant questions of the central witness, Dr. Banik, that would enable her to fairly present her position.

[34] There was clear prejudice by the member repeatedly blocking Ms. Hastick from asking relevant questions and instructing Dr. Banik not to provide answers. This occurred about five times on central points. It also altered the tone and substance of the proceeding in a way that denied fairness to Ms. Hastick.

[35] During these interventions, the other members of the panel did not comment and acquiesced through their silence.

[36] In their reasons for decision, the panel then proceeded to rely on the same areas that Ms. Hastick was denied to obtain clarification about in order to decide the outcome of the hearing. Overall, this was not fair or acceptable.

[37] The context of this Board hearing is of a significant power imbalance. Ms. Hastick is a self-represented person that has a diagnosed mental illness (albeit its existence and impact are disputed). Member Hanbidge repeatedly shutting Ms. Hastick’s questioning down while also instructing the doctor not to answer was unfair. It was also abrupt and likely intimidating. This conduct would result in a reasonable observer losing confidence that the Board is fulfilling their duty to be impartial and fair in considering the relevant information and respective positions.

[38] It is important that a person that is subject to a CTO and the public have confidence that the statutory review hearings are conducted in a fair manner, given the total interests at stake including the restrictions and mandatory treatment with drugs with serious side-effects. In this case the CTO has been renewed periodically for about nine years. Therefore, it is reasonable for Ms. Hastick to seek clarification and challenge the full impact of the treatments on her, including any adverse effects, as well as the necessity for continued mandatory treatment for her mental well-being.

[39] I respect that the panel must have discretion to manage and control the hearing. Further, I recognize that the panel is composed of experienced people. However, in managing the hearing, the panel members must “manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides”, and to witnesses. R. v. Walton, 2025 ONCA 368, citing R. v. Snow, para 24; Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, para 234; R. v. Felderhof, paras 36-40; R. v. John, 2017 ONCA 622, para 47.

[40] It was an error in principle for member Hanbidge to deny many of Ms. Hastick’s reasonable questions and prohibit answers from the only and most central witness, Dr. Banik. The areas being canvassed by Ms. Hastick were clearly relevant. They were also important for a fair hearing and the appearance of fairness.

[41] On my review of the transcript, Ms. Hastick conducted herself reasonably at the hearing. She asked questions respectfully. She did so within the time constraints. She did not exceed the scope of the hearing’s purpose or time limits. The hearing was set for two hours. It appears with the member’s interventions, it was much shorter. The overall treatment of her during this hearing, which impacts her rights and health, was not reasonable.

[42] During the oral hearing of this appeal, counsel for the Respondent fairly acknowledged that the senior lawyer Board member engaged in significant interventions that denied Ms. Hastick canvassing relevant areas. However, counsel for the Respondent submitted that the doctor provided sufficient information to justify the Board’s decision. I disagree. Due to the member’s conduct, the doctor’s responses lacked detail, and did not permit Ms. Hastick to challenge the full context and purported lack of insight.

[43] Going forward it is imperative that the Board ensure that Ms. Hastick has a fair hearing. She deserves a fair opportunity to ask questions about the relevant history and interactions with her treating doctor in order to fairly present her position. It is important that the Board members put themselves in her shoes.

[44] A few examples of the unfair interventions will suffice to show there was an unfair hearing resulting in prejudice to Ms. Hastick’s ability to present her position and that the unfairness had an impact on the decision.

[45] I will not review the background facts in detail because time is of the essence. It is important to avoid further delay since Ms. Hastick’s order under review has expired as of the date of this hearing and she has been subject to a renewal CTO for another six months. However, I have summarized the context and will refer to further facts as required in the analysis. The parties are well acquainted with the history, and so a lengthy recitation is unnecessary. In my view, the central concern is not erroneous fact-finding but the failure to conduct a fair hearing.

[46] I find that this court still has jurisdiction to deal with the appeal even though the order under appeal has expired. The Board’s reasons and order are still a live dispute since the order has been renewed based on the same foundation. Micah v. Cavanagh, 2016 ONSC 7924, paras 13-15; C.F. v. Kantor, 2020 ONSC 6916, paras 4-8. Further, Ms. Hastick has been subject to CTOs for nine years, anchored on her history from 2016. Counsel for the Respondent fairly conceded the issues are still live.

[47] An appeal decision in this case will “resolv[e] some controversy which affects or may affect the rights of parties”: C.B. v. Barsoum, 2022 ONSC 2075, para 66. I am satisfied that the same issues and disputed foundation are likely to be subject to recurring orders, so Ms. Hastick has a personal interest (and there is a public interest) in ensuring that she be able to obtain an appeal ruling to resolve a controversy which affects the rights of the parties. K.T. v. O’Brien, 2021 ONSC 209; C.B. v. Barsoum, paras 64-75.

[48] I will now turn to examples of when Ms. Hastick was denied procedural fairness.

[49] Ms. Hastick sought to ask Dr. Banik about the circumstances pertinent to her life around 2016 before and after admissions to hospital. This is because it is conceded that the foundation for all of her CTOs is the finding that she had a history of non-compliance with her prescribed treatment of the use of anti-psychotic medication which caused her to experience mental decompensation that led to hospitalizations for several weeks in 2016. It is clear that the 2016 context continues to be a key consideration for all of the CTOs issued.

[50] Ms. Hastick has not been hospitalized since 2016 and has voluntarily adhered to the CTOs that have been renewed over the past nine years. At this hearing, her position was that she is no longer suffering from the underlying condition warranting a CTO. She also disputed the facts relied upon from 2016.

[51] Ms. Hastick’s questions were intended to challenge the accuracy of the information relied upon by Dr. Banik to find that she (currently) has schizophrenia, is unable to care for herself, and the nature and impact of her continuing treatment. She also sought to challenge Dr. Banik’s understanding of what happened in 2016 since it serves as an important touchstone for the justification for her being CTOs for the past nine years.

[52] However, she was denied by member Hanbidge from doing so. The Board member repeatedly interrupted and told the doctor not to answer her relevant questions, going as far as saying “I’m not interested, nor is any of the panel, in what was happening in 2016. For some reason you’re focused in on that time period and it is completely irrelevant to what we have to decide today.” None of the other panel members commented.

[53] In addition, when Ms. Hastick tried to explain the nexus of that history to the current order under review, member Hanbidge deterred Ms. Hastick and again told her to focus on the present time only. This failed to recognize that Ms. Hastick’s position is that Dr. Banik was not fully aware of the circumstances in 2016 and did not have all of the accurate information that may impact his and the Board’s view of the total circumstances.

[54] Although Mr. Hanbidge told Ms. Hastick that what happened in 2016 was irrelevant and prevented her from asking questions about that context, in the Reasons for Decision, pages of analysis are dedicated to the circumstances around 2016 and ensuing hospitalizations. This period is relied on as an important factor in support of the continuing order and treatment plan that was under review. An excerpt at pp.8-9 of the reasons illustrates this point:

Was AH suffering from mental disorder at the time of the hearing?

Yes. As noted previously in these Reasons, Dr. Banik testified that AH had a history for several years dating back to AH’s late teens of being diagnosed with schizophrenia, a recognized primary/major mental illness.

According to Dr. Banik, when unwell, AH experienced psychotic symptoms. AH had no insight into her illness, with AH not appreciating the inevitable consequences of stopping her prescribed antipsychotic medication regimen. Previous non-compliance with AH’s prescribed antipsychotic medication regimen was seen as the major precipitating factor in AH’s subsequent substantial mental decompensation.

According to Dr. Banik from information received from AH’s mother, as noted in Exhibit 4, AH had been treated as an inpatient on two occasions while AH was attending university. AH subsequently had several admissions, including three to four admissions in Ontario, one in Quebec, at least one in Alberta, and one in the USA. AH’s last hospitalization was in April of 2016. At that time, AH was brought to hospital by police. AH was described as having gone to the police station complaining of her ex-employer trying to harm her. She presented with symptoms of delusions of persecution, believing that food had been contaminated, hearing voices of God and her ex-employer, and also she had significant disorganization of thoughts with difficulties functioning in the community. AH was also noted as being homeless at that time.

During her stay in hospital in 2016, AH was documented as being totally unwilling to accept any treatment for her mental illness of schizophrenia. She was declared incapable with respect to her treatment with antipsychotic medication. Her mother, LH, was appointed as AH’s substitute decision-maker (“SDM”). With AH’s mother’s consent AH was treated with antipsychotic medication during her stay in hospital. AH showed improvement in her mental state prior to her discharge from the hospital. AH was also placed on a Community Treatment Order (“CTO”) prior to her discharge from hospital in 2016. Since then, while subject to continuous CTO renewals, AH had not required any further hospitalizations. She has coped reasonably well with her day-to-day responsibilities and also her employment pursuits. Dr. Banik added that AH did not require any the issuances of any Form 47’s over the past year or so.

It was Dr. Banik’s professional opinion that on the day of the hearing AH was suffering from this same major mentally disordered condition of schizophrenia. Dr. Banik indicated that when AH became mentally unwell, usually because of non-compliance with AH’s prescribed antipsychotic medication regimen, AH was reported to decompensate and soon thereafter would experience increased psychotic symptoms. During Dr. Banik’s most recent capacity assessment of AH on October 8, 2024, AH continued to have no insight into her mental health condition such that AH did not feel that she needed adequate treatment with the use of the CTP and antipsychotic medication.

[55] In other parts of the decision, Ms. Hastick’s mental illness is described as chronic from 2016. This was a central area that Ms. Hastick sought to contest. My impression is that she feels that she has been misdiagnosed based on a flawed understanding of her circumstances in 2016.

[56] In addition, Ms. Hastick sought to ask questions about the contents of the Doctor’s assessment of her treatment within 72 hours before entering into the CTO.

[57] Ms. Hastick asked the doctor whether she was able to make all of her other life decisions, beyond treatment for schizophrenia, to demonstrate that her mental disorder did not necessarily require mandatory treatment and supervision in the community. She submitted that she adheres to medical treatment when required.

[58] With respect to this line of questioning, again Member Hanbidge told the doctor not to answer, stating “that doesn’t assist us to decide what you are or are not capable of otherwise. Don’t answer the question doctor it’s irrelevant.” Ms. Hastick pointed out that she was trying to demonstrate that she was capable of being independent. Instead of permitting the doctor to answer the question, the member told her she was giving evidence now and told her to move on.

[59] In the reasons for the decision, the Board makes findings on this related point, at p. 10:

According to Dr. Banik, without the provisions of a CTO, it was his professional opinion that AH would disengage from treatment in a matter of time and stop taking her medication and soon thereafter begin to mentally decompensate.

[60] Further, later she asked about how the CTO appointments, which she is required to attend as part of the treatment plan, actually help her. For example, at one point she asked the doctor: “… why do you say [that the appointments and treatment] keeps me out of the hospital? How does an appointment keep me out of the hospital? How do your appointments keep me out of the hospital?” Dr. Banik responded briefly that the appointment is to monitor her progress, make adjustments, and help her stay better. She asked a follow-up question about what occurs in the appointment that helps her stay better. Then member Hanbidge again cut her off and improperly accused her of dragging on the hearing, stating:

No, don’t answer that doctor. Maam this is not relevant to what we have to decide, with the greatest of respect. And really, with the greatest of respect to you, you’re dragging this out with irrelevant lines of questioning that are not helpful at all to what the panel have to decide today. Unless you have something relevant, I’m going to end your examination of the doctor because it’s of no utility. So, unless you have something relevant, were going to wrap it up.

[61] To be clear, Ms. Hastick was not dragging out the hearing.

[62] Each time, Mr. Hanbidge intervened, Ms. Hastick complied. Then Ms. Hastick asked about how the medication she is treated with “cures” her symptoms for schizophrenia. Part of the reason she explained that she was challenging the CTO was because of serious side effects from the medication that she believed are causing her to feel unwell, and in her view, are disproportionate to the positive effects. Dr. Banik responded that they control her symptoms. Ms. Hastick asked how do they control the symptoms because they make her shake a lot, describing one of the side effects. At the oral hearing before me she submitted that the side effects hinder her ability to work and the treatment plan makes it difficult for her to move locations for other job prospects.

[63] Again, member Hanbidge interrupted her and told her that she had already covered this area, preventing the doctor from explaining. She had not covered this area.

[64] Later, Ms. Hastick asked Dr. Banik about her current insight, and whether the doctor was relying on a nurse’s note from 2016 that she did not have insight. The doctor explained that he agreed with the nurse’s note and he felt she did not have insight because she was not aware of her schizophrenia condition and the benefits and risks of treatment. Before she could ask a follow-up about this important area, the same member intervened again and said, “Ms. Hastick you’ve going for about an hour asking the doctor questions, most of it irrelevant, I’m going to put a ceiling on this, you have about five minutes, so go to questions that are relevant and move on.”

[65] When a patient seeks a review of the issuance of a CTO under the MHA, the onus of proof rests with the treating physician to establish that the statutory criteria for the issuance or renewal of the CTO are met on a balance of probabilities. This onus means that it is essential to not only permit the doctor to answer relevant questions to the patient’s position but also that the doctor carefully explain the reasons to justify the continuance of the order. In addition to being legally required, this also fosters patient and public confidence in the process and result. A patient subject to a CTO is entitled to challenge and know in full the basis for the order.

[66] I pause here to note that Dr. Banik’s October mental health progress notes for October 8 and following are brief in their explanation of the basis of the need for the continuing CTO. In parts they are conclusory in their explanations of the basis for the continuation of the CTO and related plan. This is another reason the questioning was reasonable.

[67] The notes acknowledge that since 2016, Ms. Hastick has done well. They explain this aspect of her current circumstances better than they do the basis for the CTO. She is noted to report feeling quite well. She has been working two jobs. She denies any significant mood or anxiety symptoms. She also denies psychotic symptoms. She has been tolerating her medications. She denies any abuse of substances. In the first note there is a brief reference to side effects that include: muscle stiffness, involuntary movements of the hands, restlessness, weight gain, increase in sugar and cholesterol levels, sexual side effects, and remote possibility of involuntary movement of the mouth. The additional progress note explains her same history for 2016 noted above where she was initially placed on a CTO before being discharged from the hospital. This additional note indicates she has coped well with her daily responsibilities for the past year. She indicated that she did not believe she had a mental disorder requiring ongoing treatment with anti-psychotic medication. The doctor then concludes that she does not appreciate the reasonable and foreseeable consequences of her treatment or lack of treatment.

[68] There is not a sufficient explanation of their treatment discussions that would help to understand her purported lack of insight, which is an area that Ms. Hastick sought clarification but was denied. The way that the medication controls her symptoms and the impact if she did not take them to her ability to live independently is not explained, which is also an area for which she sought answers, but was cut off.

[69] The doctor concludes that:

Ms. Hastick has benefitted from [the CTO]. She is likely to suffer substantial mental deterioration without ongoing treatment with anti-psychotic medication and also being on a community treatment order. It is quite likely that without a community treatment order and anti-psychotic medication, Ms. Hastick will suffer a relapse of schizophrenia leading to further hospitalizations.

[70] Had Ms. Hastick been permitted from asking the questions, the actual basis for the need for another CTO would likely have been sufficiently explained. However, these notes are the primary basis that the CTO was upheld.

Conclusion

[71] The appeal is granted.

[72] Pursuant to s. 80(10)(c) of the HCCA, I refer the matter back for rehearing before a differently constituted Board.

[73] The current CTO shall remain in effect subject to the outcome of the new hearing since the most-recent CTO post-dates the one under appeal.

[74] Should the Board find that this November 12, 2024 order that expired April 15, 2025 was not justified, then the continuation order currently in effect (or any subsequent renewal that is not subject to a mandatory hearing) should be terminated.

[75] At the new hearing, I direct that Ms. Hastick be given an opportunity to submit evidence and ask relevant questions about the circumstances of 2016 that continue to be a foundation for the CTOs, subject to reasonable time limits and directions. Further, I direct that she be able to ask questions about her continuing treatment, the full scope of side effects, and her ability to adhere to treatment without a CTO.

[76] A final comment. I recognize that Ms. Hastick appears to have done well overall in her life for the past several years which coincides with CTOs and treatment of Dr. Banik. She has worked consistently, continued her education, and lives independently. It is not lost on the court that this is circumstantial support that the health care system is working effectively in this case.

[77] However, Ms. Hastick is entitled to be heard to put forward valid arguments based on the full information about her past and current circumstances that relate to need for continuing mandatory treatment.

[78] The Supreme Court described in Starson v. Swayze at paras. 6-7, albeit in the context of capacity, the fundamental tension between cherished principles that plays out in hearings of this nature. A fair hearing and process is essential when there is a dispute over autonomy and rights over one’s body versus mandatory medical treatment (including in the community), for people with a mental disorder:

6 The HCCA confronts the difficult problem of when a mentally ill person may refuse treatment. The problem is difficult because it sets in opposition fundamental values which we hold dear. The first is the value of autonomy — the ability of each person to control his or her body and consequently, to decide what medical treatment he or she will receive. The second value is effective medical treatment — that people who are ill should receive treatment and that illness itself should not deprive an individual of the ability to live a full and complete life. A third value — societal protection — comes into play in some cases of mental illness. Where the mentally ill person poses a threat of injury to other people or to him– or herself, it may be justified to impose hospitalization on the basis that this is necessary in the interests of public safety:…

7 Ordinarily at law, the value of autonomy prevails over the value of effective medical treatment. No matter how ill a person, no matter how likely deterioration or death, it is for that person and that person alone to decide whether to accept a proposed medical treatment. However, where the individual is incompetent, or lacks the capacity, to make the decision, the law may override his or her wishes and order hospitalization.

[79] The Board’s core duty when dealing with mandatory treatment orders is to provide necessary oversight of CTOs through a fair hearing.

Mirza, J.
Released: May 21, 2025