Court File and Parties

Court File No.: CV-23-00091156 Date: 2025-09-09 Ontario Superior Court of Justice

Between: Jill Andrews, Appellant – and – Dr. Marion Malone, Respondent

Counsel: Self-Represented (Appellant) Brooke F. Smith and Justin McCarthy, for the Respondent

Heard: September 5, 2025

Reasons for Decision

McVey J.

Overview

[1] On January 4, 2023, the Respondent, Dr. Marion Malone, found that the Appellant lacked the capacity to consent to treatment with anti-psychotic medication. On January 18, 2023, the Consent and Capacity Board upheld the Respondent's finding of incapacity. The Appellant appeals the CCB's decision pursuant to section 80(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2., Sched A.

[2] For reasons that follow, the appeal is dismissed.

Background

[3] The Appellant is a 64-year-old woman from St-John's, Newfoundland. She worked for the provincial government for twenty years and later the federal government. Her employment with the federal government was terminated in January 2020. The Appellant unsuccessfully brought an action against the government for wrongful dismissal and later failed in her appeal to the Federal Court. At the time relevant to this appeal, the Appellant was seeking leave to appeal her matter further to the Supreme Court of Canada. During the employment litigation, the Appellant sold her home in Newfoundland and relocated to Ottawa, purportedly to be closer to the courts hearing her matters.

[4] In December 2022, the Appellant found herself unable to afford the rent at her Ottawa condominium unit, as she was refusing to collect her pension out of fear that doing so would undermine her court case. The Appellant agreed to vacate the unit. She purchased a bike trailer and resolved to cycle to British Columbia, believing this was her only option given her financial circumstances. The Appellant had no training or experience in long-distance cycling and made no concrete arrangements for accommodations, intending instead to sleep in bus shelters along the way.

[5] Shortly before Christmas in 2022, the Appellant set out on her bike trip wearing multiple layers of winter clothing, including leggings, two winter jackets, and two pairs of winter pants. She initially attempted to access Highway 417 by bicycle but, after passing motorists told her to turn back, she heeded the warnings and continued along Carling Avenue instead. She sheltered in bus stops during severe weather and eventually reached Kanata, where police officers interacted with her on several occasions, either removing her from bus shelters or cautioning her about cycling on busy highways. On December 24, 2022, unable to continue cycling due to high winds and blowing snow, the Appellant flagged down a motorist on March Road who drove her to a Tim Hortons in Arnprior. From there, she texted her children, assuring them that she had made it that far safely and that they need not worry because she was dressed in multiple layers.

[6] During the Appellant's relatively short trip, both her family members and concerned members of the public contacted police. Members of the Ontario Provincial Police located the Appellant at the Tim Hortons. The Appellant advised police that she fully intended to continue her bike journey. After discussing with the Appellant the risks associated with her plan, the police apprehended her under their authority pursuant to section 17 of the Mental Health Act.

[7] The police transported the Appellant to Arnprior Hospital for assessment. She was subsequently transferred to the Queensway Carleton Hospital and admitted to the psychiatric unit under the Respondent's care. The Appellant declined to engage with the Respondent, maintaining that she did not suffer from a mental illness and demanding her immediate release.

[8] The Respondent spoke with the Appellant's family members and friends to obtain collateral information. She learned, among other things, that the Appellant's son has become increasingly worried about his mother's decision-making over the past number of years; the Appellant has become increasingly distrustful of friends and relatives; the Appellant has a family history of psychosis on her mother's side; the Appellant experiences periods of paranoia and believes that government agents are hacking her emails and listening to her phone calls; and the Appellant has declined financial benefits to which she is entitled (e.g., pension, CPP, or social assistance), fearing that collecting them might compromise her position in legal proceedings.

[9] On January 4, 2023, the Respondent concluded that the Appellant was incapable of consenting to treatment with antipsychotic medication. On January 18, 2023, the Appellant challenged that finding before the CCB. The CCB upheld the Respondent's finding of incapacity, leading to the present appeal.

Motion to Lead Fresh Evidence

[10] The evidence before the CCB consisted of documentation authorizing the Appellant's involuntary detention, a three-page CCB summary completed by the Respondent, and the viva voce evidence of both parties. On appeal, the Appellant seeks to introduce numerous additional documents as fresh evidence. During the hearing, I issued a bottom-line ruling dismissing that request, with reasons to follow. These are my reasons.

[11] The test for the admissibility of fresh evidence is well-established, as set out in R v Palmer, [1980] 1 S.C.R. 759, and I need not repeat it here. I address below each set of documents the Appellant seeks to introduce as fresh evidence.

Applications for Psychiatric Assessments (Form 1s)

[12] Members of the OPP first brought the Appellant to the Arnprior Hospital pursuant to their powers under section 17 of the Mental Health Act. The Appellant was detained pursuant to a Form 1 signed on December 24, 2022. The Appellant was later transferred to the QCH, and a second Form 1 was signed on December 25, 2022. The Appellant states that a second Form 1 was signed because of a technical error in the first.

[13] Following the Appellant's initial assessment, she was detained under a Certificate of Involuntary Admission (Form 3) signed on December 28, 2022, and subsequently pursuant to a Certificate of Renewal (Form 4) signed on January 10, 2023. These Forms, along with the Confirmations of Rights Advice and Notices to Patient, were before the CCB at the hearing. However, the original Applications for Psychiatric Assessment (Form 1s) were neither provided to the Appellant's counsel nor submitted to the CCB. The reason for this lack of disclosure is not before me.

[14] Notably, the Appellant did not challenge her involuntary status at the QCH before the CCB at the hearing on January 18, 2023. Indeed, at no time during her stay at the QCH between December 25, 2022, and her release from the facility in mid-February 2023, did the Appellant challenge her detention. Her failure to do so does not, of course, constitute a concession of incapacity. However, it bears on the relevance of the fresh evidence she now seeks to introduce in the form of the original Form 1s.

[15] This is not a court of first instance, and this appeal does not call upon me to assess the lawfulness of the Appellant's detention or the impact of any technical defects in the original Form 1s. The Appellant did not challenge her detention before the CCB, and she has not shown how the now-available Form 1s could have affected the reasonableness of the CCB's finding of incapacity, the issue before me. Moreover, her counsel, present at the CCB hearing, raised no concerns about their non-production.

[16] For the above reasons, I decline to admit the Form 1s dated December 24, 2022, and December 25, 2022 as fresh evidence on appeal.

Medication Discharge Summary

[17] The Appellant seeks to adduce her medication discharge summary which she received on February 10, 2023, upon release from the QCH. In her Notice of Motion, the Appellant alleges that the medication discharge summary—which the Appellant did not file on the Motion—includes seven medications that she neither required nor took during her stay at QCH. The Appellant argues that the inclusion of these medications on her medication discharge summary is unlawful and a violation of her patient rights. Whether the medication discharge summary reflects that the Appellant actually took the medications, or merely that they were prescribed or recommended, is unclear to me having not seen the actual document. In either case, the medication discharge summary is not relevant to the issue I must decide on this appeal.

[18] The uncontested evidence before the CCB established that the Appellant refused medication during her involuntary stay at QCH, a fact in respect of which both the Appellant and Respondent agreed. Accordingly, whether the medication discharge summary later reflected, in error, that the Appellant took medication when she did not is irrelevant to this appeal.

[19] In making this finding, I do not intend to diminish the legitimate importance the Appellant places on the accuracy of her medical records. I recognize her valid concern about the discharge summary potentially indicating that she took medication when she had not. However, this is not the appropriate forum to correct alleged errors in medical records or to investigate claims that certain individuals improperly altered those records. My task is to assess the reasonableness of the CCB's finding regarding incapacity. The medication discharge summary is irrelevant to that determination, particularly since the evidence before the CCB correctly reflected that the Appellant refused medication.

[20] I decline to admit the medication discharge summary as fresh evidence on appeal.

Appellant's Health Chart

[21] The Appellant seeks to introduce her complete health chart on two grounds, which I will address in turn. First, she contends that her health chart shows that although the Certificate of Renewal was signed by the Respondent before the Certificate of Involuntary Status expired, it was not served on the Appellant until several hours after the Certificate of Involuntary Status had lapsed, which the Appellant argues should have resulted in her release from hospital.

[22] For the same reasons outlined above, these alleged procedural errors are irrelevant to the CCB's determination of incapacity, which is the issue on appeal. Moreover, the Appellant acknowledges in her materials that she informed her lawyer by email on January 11, 2023—seven days before the hearing—about the perceived timing issue with the Certificate of Renewal. I also note that both the Form 3 and Form 4 were before the CCB at the hearing and any related issues could have been raised by the Appellant's counsel.

[23] Second, the Appellant seeks to adduce her health chart because it discloses that she was observed by QCH staff during her involuntary stay and that such observations violated her patient and privacy rights pursuant to the Charter and various pieces of legislation. Again, this is not the forum to litigate any of these perceived transgressions. The information is simply irrelevant to the issue before me.

[24] Finally, the Appellant was represented by counsel at the hearing, who had access to the Appellant's health chart as it existed at that time. Had it been relevant to the proceedings, the Appellant's counsel had the opportunity to tender it as an exhibit and/or cross-examine the Respondent on specific aspects of it.

[25] For the above reasons, I decline to admit the Appellant's health chart as fresh evidence.

QCH Audit Report

[26] The Appellant alleges that on April 3, 2024—fourteen months after CCB's determination of incapacity—the QCH Director of Privacy accessed her medical records. She contends that, because the Director is no longer employed at QCH and cannot be questioned about this access, I should admit the Audit Report in these proceedings to determine whether her privacy and confidentiality rights, or her hospital patient and Charter rights, were violated.

[27] Despite being afforded multiple opportunities, the Appellant was unable to explain how this matter could possibly affect the issue on appeal. I therefore decline to admit the Audit Report as fresh evidence.

Appellant's Recorded Notes

[28] Finally, the Appellant seeks to introduce the notes she made during her involuntary stay at QCH. These notes were also not filed on the motion. The Appellant contends that the notes correct inaccuracies in her health chart and contain new, relevant information. However, the Appellant has not specified what content in the notes could have influenced the CCB's determination of incapacity. Moreover, she possessed her notes at the time of the CCB hearing and could have provided them to her counsel had she wished. The Appellant also gave evidence at the CCB hearing, providing her with the opportunity to share any information she deemed necessary regarding her stay at QCH.

[29] For the above reasons, I decline to admit the Appellant's recorded notes as fresh evidence.

CCB's Finding of Incapacity

[30] The Appellant launches three related attacks on the CCB's determination of incapacity. First, she alleges a reasonable apprehension of bias on the part of the CCB. Second, she asserts a lack of procedural fairness. Finally, she contends that the CCB misapprehended and ignored her evidence, rendering its finding of incapacity unreasonable. I will address each argument in turn.

Reasonable Apprehension of Bias

[31] The Appellant alleges that the CCB exhibited a reasonable apprehension of bias in four ways: (1) by seeking to confirm during the hearing that the Appellant had not challenged her involuntary status and questioning why she had not; (2) by preferring the Respondent's evidence over the Appellant's regarding whether the Appellant suffered from a mental illness; (3) by failing to question the Respondent about a potential conflict of interest, given that she was the Respondent at the hearing yet sought to meet with the Appellant in person shortly before the hearing; and (4) by asking the Respondent the following two questions: "what treatment [she was] referring to in terms of incapacity, is it antipsychotic medication?" and "whether [the Appellant] had improved since her initial admission?"

[32] There is a strong presumption that decision-makers act impartially, and a high threshold must be met to displace it. The Appellant has not done so here.

[33] First, in my view, the CCB conducted its hearing professionally, seeking out and focusing on information relevant to the issue before it. The CCB reasonably sought to confirm that the matter at hand concerned capacity, rather than the lawfulness of the Appellant's detention, issues that are commonly argued together. Given the Appellant's insistence that she did not suffer from a mental illness and that her apprehension by police was unlawful, questioning her about why she had not challenged her detention was appropriate, as such a challenge could reasonably have been expected under the circumstances. The CCB also sought to clarify the specific matter in respect of which the Appellant was found incapable. I find nothing improper in any of the questions posed by the CCB to either party.

[34] Second, the Appellant did not raise concerns about the Respondent's purported conflict of interest at the CCB hearing; therefore, the CCB's failure to inquire into that matter does not disclose bias. In any event, there is nothing in the record before me indicative of such a conflict.

[35] Finally, giving greater weight to the Respondent's evidence over that of the Appellant does not give rise to a reasonable apprehension of bias, nor does misapprehending certain aspects of the evidentiary record—which I find occurred and discuss further below.

[36] The evidence before me falls far short of establishing a reasonable apprehension of bias on the part of the CCB.

Procedural Fairness

[37] The Appellant argues that she was unable to adequately prepare for the hearing because she received her health chart from her lawyer only two days before the hearing, and the CCB summary the day before. Notably, the Appellant does not claim that her lawyer received these materials late, only that her lawyer did not provide them to her in a timely manner. In fact, the Appellant's counsel was disclosed the Appellant's health chart on January 10, 2023, eight days before the hearing.

[38] This ground of appeal must also fail.

[39] The process for reviewing a determination of incapacity involves a careful balance between procedural fairness and timely delivery of necessary treatment. On one hand, procedural fairness requires that a patient be fully informed of the anticipated evidence, have adequate notice of the hearing, and be given a meaningful opportunity to respond, including access to legal counsel or a rights adviser. This ensures that any finding of incapacity is legitimate and otherwise consistent with the patient's rights. On the other hand, healthcare decisions are often time-sensitive, and delays in treatment can result in physical or psychological harm. Accordingly, the system must ensure that procedural safeguards are not applied in a way that unintentionally deprives a patient of necessary care. The statutory framework of the HCCA and the CCB's Rules of Practice are designed to strike this delicate balance.

[40] The Appellant and her counsel received the required materials within the timelines contemplated by the CCB's Rules of Practice. Further, the CCB has the authority to adjourn hearings to allow for proper disclosure. The Appellant's counsel did not raise any procedural fairness concerns or seek related relief before the CCB on January 18, 2023.

CCB's Finding of Incapacity

[41] The CCB's identification of the proper statutory test for capacity involves a question of law reviewable on the correctness standard. The CCB's application of the proper test to the evidence to determine whether a person is capable is a question of mixed fact and law, reviewable on the deferential standard of palpable and overriding error, absent an extricable question of law in the CCB's analysis: B.L. v. Pytyck, 2021 ONCA 67, at paras. 20-21.

[42] Here, the CCB correctly identified the applicable law on capacity and appropriately placed the burden on the Respondent to prove, by clear, cogent, and compelling evidence, that the Appellant lacked the capacity to consent to treatment, in accordance with section 4(1) of the HCCA. Indeed, the Appellant does not assert any extractable error of law; rather, she challenges the CCB's ultimate application of the law to her circumstances.

[43] A finding of capacity involves two elements. First, a person must be able to understand the information relevant to making a treatment decision, which requires the cognitive ability to process, retain, and comprehend that information. The Respondent opined and the CCB accepted that the Appellant easily met this criterion. The Appellant is highly intelligent and meticulous.

[44] Second, a person must be able to appreciate the reasonably foreseeable consequences of a treatment decision, or of failing to make one. This requires the patient to be able to apply relevant information to their own circumstances and to weigh the foreseeable risks and benefits of a decision, or inaction. The CCB's finding of incapacity was based on the Appellant's inability to meet this second requirement.

[45] The Respondent testified that the Appellant's psychosis had significantly impaired her judgment and decision-making. This opinion was not founded solely on the Appellant's intentions to cycle across Canada in the middle of winter without adequate training, equipment, or preparation. Rather, the Respondent relied on that evidence together with background information received from the Appellant's family and friends regarding the gradual degradation of the Appellant's decision-making over many years. Taken together, this information pointed to an active and developing mental illness that was undermining the Appellant's judgment and preventing her from appreciating the foreseeable consequences of her actions. The Respondent concluded that the Appellant's illness prevented her from recognizing or understanding the changes in her mental functioning that were affecting her decision-making and overall well-being, as evidenced by her decision to bike to British Columbia in the dead of winter without proper preparation.

[46] The Appellant testified in what the CCB described as an articulate manner. She firmly denied having a mental illness, maintained that she did not require medication, and asserted that her family and friends were simply overreacting to her plans to cycle to the west coast and to other decisions she had made over the years. The CCB found that the Appellant downplayed the psychotic symptoms identified by the Respondent. This was a reasonable characterization of the Appellant's evidence.

[47] The CCB concluded that the Appellant's recent decisions were not simply "foolish" or "reckless" but, when viewed in the broader context, were evidence of impaired judgment and thought processes. I accept that the sole act of making objectively dangerous decisions is not, in and of itself, determinative of capacity; but problematic decision-making is still relevant in the overall assessment and can suggest an inability to foresee the consequences of one's actions. However, neither the Respondent nor the CCB relied exclusively on the Appellant's decision to bike across Canada when reaching their conclusions. Instead, the CCB considered the totality of the evidence before it when concluding that the Appellant's condition prevented her from appreciating the impact of its manifestations. I see no reversible error in its reasoning. Rather, this case illustrates a circumstance in which the Appellant was able to intellectually understand the subject matter of consent, the nature of psychosis, generally, and the proposed treatment, yet her capacity to appreciate these matters in relation to herself was impaired by her mental disorder: see Starson v Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 17.

[48] Before concluding, I appreciate that the CCB misapprehended the evidence in two ways. First, in its overview, the CCB wrote that the Appellant had been "evicted" from her apartment. This conclusion is unsupported by the evidentiary record. The Appellant testified that she could no longer afford her condo unit, so she agreed to move out by a certain date. There was no evidence that she had been "evicted." However, this misapprehension was not central to the CCB's analysis. In other words, this error did not affect the CCB's conclusion on capacity; indeed, the Appellant's supposed eviction features nowhere in the CCB's actual analysis.

[49] Second, the CCB wrote the following:

[The Appellant's] own oral evidence demonstrated to the presiding member that her thought content and life decisions were dominated by legal matters. For instance, she confirmed that she did not work, apply for benefits to which was entitled (i.e., pension, CPP or social assistance) or take medication as she believed that these actions would compromise her position in her legal matters. She spent most of her savings on lawyers and other expenses related to her cases to the point where she was running out money.

[50] I agree with the Appellant that there was no evidence before the CCB suggesting she refused medication due to a belief that it would affect her ongoing legal matters. Rather, the evidence disclosed that the Appellant declined medication because she felt she did not need it. Nonetheless, when the CCB's decision is considered as a whole, this misapprehension was not determinative. There was ample other evidence supporting its overall conclusion, noted above, that the Appellant's decision-making had been "dominated by legal matters."

Conclusion

[51] I acknowledge that the right to refuse unwanted medical treatment is a core element of personal dignity and autonomy, and it is no less significant in the context of mental health care. Few interventions are more intrusive than the involuntary administration of mind-altering medication, often accompanied by unwanted side effects: see Starson, supra. That said, in certain circumstances, the well-being of individuals who lack capacity to make treatment decisions requires intervention by medical professionals. When this occurs, findings of incapacity are subject to review by the CCB, an entity which possesses specialized expertise. An appellate court should not interfere with CCB's decision-making unless the decision reached is not one reasonably available on the evidence. I am unable to find so here.

[52] Accordingly, the appeal is dismissed.

McVey J.

Released: September 9, 2025