



COURT OF APPEAL FOR ONTARIO

CITATION:
Abou-Diab v. Legault, 2012
    ONCA 546

DATE: 20120822

DOCKET: C54822

Goudge,
    Feldman and Blair JJ.A.

BETWEEN

Wael Abou-Diab

Appellant

and

Dr. S. Legault

Respondent

Wael Abou-Diab, appearing in person

Anita Szigeti,
amicus curiae

Mark Handelman, for the respondent

Heard and released orally: June 27, 2012

On appeal from the judgment of Justice Duncan A. Grace of
    the Superior Court of Justice, dated November 24, 2011.

ENDORSEMENT

[1]

The appellant with the helpful assistance of
amicus
, challenges
    the Consent and Capacity Boards two decisions, particularly that of August 20,
    2011 and the Superior Courts decision upholding them. He says the Board either
    applied the wrong legal test or was unreasonable in concluding the test was
    met.

[2]

At issue is the second step required for a finding of incapacity as set
    out in
Starson v. Swayze
, [2003] 1 S.C.R. 722: does the person lack
    the ability to appreciate the reasonably foreseeable consequences of his
    decision to refuse the proposed treatment? In our view, both the Board and the
    Superior Court understood and articulated this test correctly.

[3]

The Board found, as we read their decision, particularly that of August
    2011, that the appellants mental condition, mainly his delusion that he has
    something wrong with him physically, renders him unable to appreciate the
    consequences of his decision to refuse psychiatric and nourishment treatment.
    There was ample evidence to support this finding.

[4]

The Boards statement that continued failure to appreciate is explained
    only by inability to do so, should not be read in isolation. While such a
    statement on its own might be questionable, here it was clearly made in the
    context of the appellants delusion, which is the root cause of his inability.

[5]

We do not find it necessary or desirable to admit the fresh evidence, since
    the question before us must focus on the capacity or incapacity of the
    appellant at the time of the Boards hearing, not thereafter. See:
Starson
,
    at para. 119.

[6]

In all the circumstances therefore, the appeal must be dismissed.

[7]

No costs.

S.T. Goudge J.A.

K. Feldman J.A.

R.A. Blair J.A.


