



COURT OF APPEAL FOR ONTARIO

CITATION: Parsons v. Komer, 2017 ONCA 407

DATE: 20170523

DOCKET: C60992

Gillese, Benotto and Roberts JJ.A.

IN THE MATTER OF an application under subsection 32(1) of the
Health
    Care Consent Act, 1996
, S.O. 1996, c. 2, Schedule A, as amended.

AND IN THE MATTER OF Stephen Parsons A patient at the Waypoint
    Centre for Mental Health Care  Provincial Penetanguishene, Ontario

BETWEEN

Stephen Parsons

Applicant (Appellant)

and

Dr. B. Komer

Respondent (Respondent)

Thomas Whillier, for the appellant

James P. Thomson, for the respondent

Heard: November 23, 2016

On appeal from the order of Justice Mary E. Vallee of the Superior
    Court of Justice, dated August 18, 2015, dismissing an appeal from the order of
    the Consent and Capacity Board, dated March 12, 2015.

Benotto J.A.:

[1]

The Consent and Capacity Board found Stephen Parsons incapable of
    consenting to treatment with antipsychotics and mood stabilizers. He argued on
    appeal to the Superior Court of Justice that the Board had erred and also
    infringed his right to procedural fairness because the Board failed to follow
    its own procedural guidelines. The appeal judge dismissed his appeal. Mr.
    Parsons again submits -now before this court - that the Board did not follow
    its own guidelines and thus infringed his right to procedural fairness

[2]

I do not agree. The Boards guidelines provide for a preliminary
    mini-inquiry when the subject of an application refuses to obtain legal
    representation.  Mr. Parsons did not refuse to obtain legal representation. No
    further inquiry was necessary.  Mr. Parsons was not denied legal representation
    and his rights to procedural fairness were not infringed.

A.

facts

(1)

Background

[3]

On November 30, 2013, Mr. Parsons was charged with possession of a
    weapon for a dangerous purpose. On January 16, 2015, he was found not
    criminally responsible due to a mental disorder. He was detained at the
    Waypoint Centre for Mental Health Care in Penetanguishene. On January 27, 2015,
    Dr. Komer found Mr. Parsons incapable of consenting to treatment. Mr. Parsons
    appealed the finding to the Board.

(2)

Attendances before the Board

[4]

A hearing before the Board was scheduled for February 3, 2015. Mr.
    Parsons attended. He was self-represented. A Patient's Rights Advisor suggested
    to Mr. Parsons that he request an adjournment to arrange for counsel. Mr.
    Parsons did so. The Board Chair asked him if he wanted to have counsel
    appointed for him. He said that he would prefer to obtain his own counsel. The
    hearing was adjourned for fifteen days so that he could obtain counsel.

[5]

On February 18, 2015, the hearing resumed. Mr. Parsons attended without
    a lawyer. The following exchange took place:

Chair: And I see that you don't have a lawyer with you...

Parsons: I...

Chair: ... the last time you were before (sic) I granted you an
    adjournment so that you could retain a lawyer, so what's your intention today?

Parsons: I guess I'm going to have to continue with this. I
    talked to [the Patients Rights Advisor] and he filled out my legal aid
    application and he took the name down of the lawyer that I was to contact and
    he never filed the application or contacted the lawyer, so.

Chair: So are you prepared to represent yourself today?

Parsons: I am.

Chair: You seem prepared.

Parsons: To a point, yes I am actually prepared to represent
    myself, whether I'm actually going to succeed or even follow through in my
    efforts is unknown at this time.

Chair: Okay.

Parsons: But I'll try.

[6]

The hearing proceeded. The Chair explained the hearing process to Mr.
    Parsons: Dr. Komer would give evidence first, and then Mr. Parsons would have
    the chance to question him, as would the Board; Mr. Parsons would then have an
    opportunity to give evidence and state what his position was. The Board
    explained that the hearing would finish with final submissions from both Dr.
    Komer and Mr. Parsons, and that the Boards decision would be sent by fax to
    the hospital the next morning.

[7]

At the hearing, Dr. Komer testified
that Mr. Parsons suffered from a major mental illness requiring treatment with
    antipsychotic medications. He stated,

[I]ts clear that Mr. Parsons does have an illness, a mental
    condition, he lacks insight into that condition, although hes someone that
    does have the capacity in a general sense to understand what treatment can do
    for some, could understand, in general, that someone might have a condition
    like himself, might be delusional, but he doesnt have the ability to apply
    that to himself.

[8]

Dr. Komer also testified that Mr. Parsons did not want antipsychotic
    medications because they caused him dizziness, they had other side effects and
    he did not think he needed them.

[9]

The Chair invited Mr. Parsons to ask questions of Dr. Komer. Mr. Parsons
    did not ask a question, but instead made a long and incoherent speech. Once
    this was over, the Chair asked Mr. Parsons whether he had any more questions,
    and Mr. Parsons replied, [n]o, that's it, Your Honour. The Chair proceeded to
    question Dr. Komer. She then asked Mr. Parsons whether he had any more
    questions for the doctor. Mr. Parsons said he did not, but that he wished to
    make a statement. He gave another long speech.

[10]

The Chair then asked Mr. Parsons some questions and gave both Dr. Komer
    and Mr. Parsons the opportunity to make final submissions. Ultimately, in its
    decision released March 12, 2015, the Board upheld Dr. Komers finding that Mr.
    Parsons was incapable of consenting to treatment.

(3)

Appeal to the Superior Court

[11]

On appeal to the Superior Court, Mr. Parsons argued the evidence was
    insufficient to support the finding of treatment incapacity and the Board
    infringed his right to procedural fairness. The appeal judge  relying on the
    evidence of Dr. Komer and on Mr. Parsonss conduct  found that the Board did
    not err in its finding of incapacity.

[12]

The appeal judge then proceeded to consider Mr. Parsons submission that
    the Board had denied him procedural fairness. Mr. Parsons submitted that, on
    February 18, 2015, he did not say that he did not want a lawyer and, further,
    the Board failed to advise him that he could seek another adjournment to obtain
    counsel. He submitted that the Chair should have conducted an inquiry in
    accordance with the Boards own Policy Guideline. In the result, he was denied
    procedural fairness resulting in the Boards loss of jurisdiction.

[13]

The Boards Policy Guideline 2, dated September 1, 2007, deals with a self-represented
    person before the Board. It provides that the Board should act in accordance
    with principles aimed at assisting the self-represented person throughout the
    hearing. Paragraph 4 of Guideline 2 provides:

4.       The Board will strive to avoid adjournments as a
    general principle. When the subject of an application appears unrepresented,
    the panel of the Board hearing the application will decide whether or not to
    proceed without legal representation by conducting a preliminary mini-inquiry
    to establish:

(a)   Whether the subject of the application refuses to
    obtain legal representation at the time of the hearing; and if so

(b)   Whether
    the subject of the application has made an informed decision. The Board will
    not consider the objective wisdom of the choice once an informed choice has
    been made.

(c)   Whether
    the subject of the application does not want legal representation because he or
    she does not want to pay the fees for legal representation. [In which case,
    reference is made to Legal Aid]; and

(d)   Whether
    the subject of the application has already been granted adjournment(s) to
    obtain counsel.

[14]

The appeal judge concluded that the Chair did not specifically ask Mr.
    Parsons whether he was refusing to obtain legal representation; however, she
    noted that was not necessary because Mr. Parsons clearly indicated that he was
    prepared to represent himself.  In the result, no further inquiry was
    necessary. It would only have been required if Mr. Parsons stated that he
    refused to obtain representation. Accordingly, the appeal judge dismissed the
    appeal.

B.

Issues on Appeal

[15]

The only issue on appeal is whether the
    Board denied Mr. Parsons procedural fairness.
Mr. Parsons submits before
    this court that the appeal judge erred in concluding that he was not denied
    procedural fairness. He argues that the Board did not conduct a mini-inquiry in
    accordance with its Policy Guideline 2, and the Board should have advised Mr.
    Parsons that another adjournment was possible and that counsel or
amicus
    curiae
could be arranged for him.

C.

Analysis

[16]

The parties agree that the standard of review with respect to procedural
    fairness is correctness. Assuming that the parties are correct in their view,
    the issue before this court is whether the appeal judge correctly concluded
    that Board did not deny Mr. Parsons procedural fairness: Colleen M. Flood and
    Lorne Sossin,
Administrative Law in Context
, 2d ed. (Toronto: Emond
    Montgomery Publications, 2013), at p. 181; see also
Agraira v. Canada
    (Public Safety and Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R.
    559, at paras. 45-46.

[17]

The appeal judge reviewed the transcript from the Board hearing and
    concluded that Mr. Parsons said that he was prepared to represent himself. This
    question was put to Mr. Parsons directly:

Chair: So are you prepared to represent yourself today?

Parsons: I am.

[18]

The record demonstrates that Mr. Parsons was prepared to represent
    himself. I agree with the appeal judge that in the circumstances, it was not
    necessary for the Board to specifically ask whether Mr. Parsons was refusing to
    obtain legal representation because he clearly indicated to the Board that he
    was prepared to represent himself.

[19]

The record does not suggest that Mr. Parsons refused to obtain legal
    representation. Refusing to obtain legal representation is a pre-condition to proceeding
    with the mini-inquiry set out in Policy Guideline 2, which states that:

The Board will strive to avoid adjournments as a general
    principle. When the subject of an application appears unrepresented, the panel
    of the Board hearing the application will decide whether or not to proceed
    without legal representation by conducting a preliminary mini-inquiry to
    establish:

(a)

Whether the subject of the
    application refuses to obtain legal representation at the time of the hearing;
and if so

[Emphasis added.]

[20]

The words if so make it clear that the panel of the Board is only to
    proceed with the balance of the mini-inquiry if the subject refuses to obtain
    legal representation. As I have explained, Mr. Parsons did not refuse to obtain
    legal representation. It therefore follows that the Boards was not required to
    continue with the mini-inquiry.

[21]

I note the appeal judge acknowledged that, but for the finding that Mr.
    Parsons did not refuse to obtain legal counsel, a further inquiry would have
    been necessary. I would agree that this is the correct approach.

[22]

It is also significant to recall the context in this case: one
    adjournment had already been granted. The Boards guidelines require it to
    strive to avoid adjournments as a general principle. Also, the Board Chair
    explained the hearing process to Mr. Parsons and afforded Mr. Parsons several
    opportunities to ask questions; and Mr. Parsons was able to question Dr. Komer
    and make submissions.

[23]

Given these circumstances, I conclude that the Board did not deny Mr. Parsons
    procedural fairness at the hearing on February 18, 2015.

D.

Disposition

[24]

For the reasons set out above, I would dismiss the appeal.

M.L. Benotto J.A.

I agree. E.E. Gillese
    J.A.


Roberts J.A. (dissenting):

A.

Overview

[25]

This appeal concerns the right to a fair hearing
    for individuals with serious mental health issues and who are among the most
    vulnerable members of our society, namely the individuals who are the subjects
    of hearings before the Consent and Capacity Board of Ontario.

[26]

The appellant submits that his right to
    procedural fairness was breached because he was denied legal representation at
    his hearing before the Board.

[27]

I agree.  The Board failed to follow its own
    guidelines and breached its duty of procedural fairness to the appellant.

[28]

For the reasons that follow, I would allow the
    appeal.

B.

Issues on appeal

[29]

The following issues arise on this appeal:

1.  Did the appeals judge err in her
    identification and application of the correct standard of review?

2.  Did the Board breach its duty of
    procedural fairness to the appellant?

C.

Analysis

(1)

Did the appeals judge identify and apply the correct standard of
    review of the Boards decision?

[30]

The appeals judge accepted the parties
    agreement that the standard of review of the Boards decision was
    reasonableness.  As a result, the appeals judge held that, absent an error of
    law or a palpable and overriding error, she could not interfere with the
    Boards decision.

[31]

It is well established that the standard of
    review in relation to the Boards weighing of the evidence and findings of fact
    is reasonableness, because of the Boards expertise and advantaged position:
Starson
    v. Swayze
, 2003 SCC 32, [2003] 1 S.C.R. 722, at paras.
    84-87.  There is no dispute that the appeals judge identified and applied the
    correct standard in concluding that there was sufficient evidence before the
    Board in support of its decision.  That issue is not pursued on appeal.

[32]

The parties submit on appeal that a standard of
    correctness should be applied to the question of whether the Board breached the
    appellants duty of procedural fairness.

[33]

Historically, compliance with the duty of
    procedural fairness has been regarded as a jurisdictional question and, as
    such, a question that must be answered correctly: see G. Huscroft, From
    Natural Justice to Fairness: Thresholds, Content, and the Role of Judicial
    Review, C. M. Flood and L. Sossin, eds.,
Administrative Law in
    Context
,

2nd ed. (Toronto:  Emond Montgomery, 2013), at pp. 181-82; and
Canada
    (Citizenship and Immigration) v. Khosa
, 2009 SCC 12,
[
2009
]
1 S.C.R. 339, at para. 43.  However, courts have sometimes given an
    administrative decision-maker a significant margin of deference in terms of the
    manner in which it has chosen to follow its own procedure, such that standards
    of correctness and deference are applied at the same time:
Mission
    Institution v. Khela
, 2014 SCC 24,
[
2014
]
1 S.C.R. 502, at paras. 79 and 89.

[34]

For the reasons that follow, I am of the view
    that it does not matter which standard of review is applied.  Under either a
    correctness or reasonableness standard, the appeals judge erred and the Boards
    decision should have been set aside.

(2)

Did the Board breach its duty of procedural
    fairness to the appellant?

[35]

The appellant submits that the Board breached
    its duty of procedural fairness. He argues that he was denied a fair hearing because
    it proceeded without his representation by counsel, which he had previously
    requested and never refused.

[36]

My analysis of this issue requires, first, a
    review of the general principles informing the scope of the Boards duty of
    fairness and the appellants right to a fair hearing. I will then apply these
    principles to the circumstances of the present case.

[37]

The duty of fairness essentially includes both the
    right to be heard and the right to an impartial hearing:
Re
    Therrien
, 2001 SCC 35,
[
2001
]
2 S.C.R. 3, at
    para. 82.  Beyond this, its content varies with the specific context.  The
    Supreme Court of Canada set out a non-exhaustive list of contextual factors that
    bear on its content in
Baker v. Canada,
[
1999
]
2 S.C.R. 817,
    at paras. 21-28:  (i) the nature of the decision being made and the process by
    which it is made; (ii) the nature of the statutory scheme and the role of the
    particular decision within it; (iii) the importance of the decision to those
    affected; (iv) the legitimate expectations of the person challenging the
    decision; and (v) the choices of procedure made by the agency itself.

[38]

There is no dispute that the Board owed the
    appellant a duty of procedural fairness.  The fact that its decision would
    intimately affect the rights, privileges and interests of the appellant,
    specifically his capacity to refuse treatment, gives rise to a duty of
    fairness:
Baker,
at para. 20.
As Major
    J. (writing for the majority) observed in
Starson
, at para. 75, the
    right to refuse medical treatment for mental illness is fundamental to a
    persons dignity and autonomy.

[39]

With respect to the appellants legitimate expectations and the choices
    of procedure made by the Boardin particular, its decision to proceed in the
    absence of legal counsel for the appellant
Baker
is again
    instructive.  In
Baker
, LHeureux-Dubé J. wrote that if the affected
    party has a legitimate expectation that a certain procedure will be followed,
    that procedure will be required by the duty of fairness. This doctrine is
    based on the principle that the circumstances affecting procedural fairness
    take into account the promises or regular practices of administrative
    decision-makers, and that it will generally be unfair for them to act in
    contravention of representations as to procedure: para. 26.

[40]

Proof of actual reliance on official representations as to procedure is
    not a requisite:
Canada (Attorney General) v. Mavi
, 2011 SCC 30, [2011]
    2 S.C.R. 504, at para. 68. In The Rt. Hon. Lord Woolf et al.,
De Smith's
    Judicial Review
, 7th ed., (London: Sweet & Maxwell, 2013), the authors
    state at s. 12-001 that [t]he protection of legitimate expectations is at the
    root of the constitutional principle of the rule of law, which requires regularity,
    predictability and certainty in governments dealings with the public.

[41]

The expectations of a party such as the appellant to legal
    representation during Board hearings are prescribed under s. 10 of the
Statutory
    Powers Procedure Act
, R.S.O. 1990, c. S.22, which provides that parties to
    a proceeding before the Board have the right to representation.  The duty of
    the Board to inquire into the question of legal representation, and the
    procedure to be followed by the Board in determining whether to issue an order
    to arrange for the legal representation of the individual who is the subject of
    an application, are detailed in the Boards Policy Guideline 2, dated September
    1, 2007, which my colleague has already referenced.  That the Board is
    empowered to appoint legal counsel, even if a patient refuses legal counsel,
    underscores the crucial importance of the assistance of counsel at consent and
    capacity hearings.

[42]

The fundamental need for the assistance of counsel for the vulnerable individuals
    who are the subjects of capacity hearings before the Board was eloquently
    described by Cronk J.A. for this court in
Gligorevic v. McMaster
, 2012
    ONCA 115, 109 O.R. (3d) 321.  In that case, this court held that ineffective
    assistance of counsel was available as a ground of appeal from a Board
    decision. While
Gligorevic
was not a procedural fairness case, in
    coming to this conclusion, Cronk J.A. made observations that are relevant to
    the present case and which demonstrate that the assistance of counsel is
    particularly important given the vulnerability of the patients before the Board.

[43]

Specifically, in
Gligorevic
, Cronk J.A. wrote for this court that,
    like a criminal proceeding where liberty is at risk, a treatment capacity
    hearing implicates a patients fundamental human rights. In a very real sense,
    an incapacity finding engages a patients liberty, dignity and right of
    self-determination with respect to medical treatment (para. 60).  She held
    that a Board capacity hearing must be viewed as an adversarial, adjudicative
    proceeding where fundamental human rights are engaged (para. 60). She went on
    to conclude that, when seen in this light, effective assistance by counsel at
    such hearings enhances the adjudicative fairness of the process (para. 61)
    because it ensures that the patient has the benefit of all available procedural
    protections.

[44]

In circumstances similar to the present case, the court in
Bon Hillier v. Milojevic
, 2010 ONSC 4514
, [2010]
    O.J. No. 3457 concluded that the lack of legal representation resulted in a
    failure of procedural fairness, even though the patient in that case had
    refused counsel.  As a result, an appeal was allowed from a Board decision finding
    the patient incapable of managing property. Trotter J. (as he then was) held that
    without counsel, Mr. Bon Hillier had been denied procedural fairness as he had
    not been given a fair opportunity to meaningfully challenge the opinion of the
    physician, for reasons that are equally apt in the present case.

[45]

Mr. Bon Hillier had refused counsel because he misunderstood that he
    would not be able to make personal representations.  As in the present case,
    the Board did not clear up his confusion. Trotter J.s observations about Mr.
    Bon Hilliers inability to undertake any meaningful appeal without
    representation mirror the appellants situation in the present case:  he was
    unfocused, verbose and grandiose, disorganized in his approach, easily
    thrown off of his train of thought, never to return to the issues he was
    struggling to pursue (para. 49).

[46]

Citing this courts decision in
R. v. Samra
, (1998), 41 O.R.
    (3d) 434, Trotter J. held that even though Mr. Bon Hillier had refused his own
    legal counsel, the Board should have canvassed the appointment of
amicus
counsel, who might have provided some type of representation when there is
    none (and where it really is needed to achieve fairness) (paras. 44-45).  As
    in the present case, given the challenges which Mr. Bon Hillier faced (not
    least his lack of understanding of legal principles), although it might not
    have been apparent at the outset of the hearing, it should have become clear as
    the hearing progressed that fairness could only be achieved with the involvement
    of counsel (para. 47).  Trotter J. concluded that all of this made it
    impossible for the patient to make submissions or to properly challenge his
    physicians opinion.  I find that such is the case here.

[47]

Applying these principles to the present case, as the appeals
    judge found, the Board was required to act in accordance with its own
    guidelines.  According to those guidelines, the appellant had a constitutional
    right to represent himself if he wished, regardless of whether or not he was
    likely to represent himself effectively.  However, and most significantly for
    the present case, the guidelines also required the Board to ascertain by way of
    a preliminary mini-inquiry whether the appellant was
refusing
legal counsel, not simply whether
    he was prepared to go ahead without counsel, and if so, to determine whether
    the appellant was making an informed decision in refusing counsel.

[48]

Moreover, even if the appellant had made an informed choice to refuse
    counsel or indicated that he was prepared to proceed without counsel (as the
    appeals judge found), to ensure a fair hearing, the Board was still obliged
    under its guidelines to, among other things, err on the side of providing
more, rather than less, assistance to the unrepresented person

    (emphasis in original), not only at the outset, but throughout the course of
    the hearing.

[49]

That was the procedure that the Board was required to follow and
    that the appellant had a reasonable expectation that the Board would follow. 
    The Boards procedural guidelines serve to frame and define the reasonableness
    of the Boards actions.  In my view, the Board failed in this case to follow
    them in any meaningful or reasonable way.

[50]

I find that the Board did not follow its own
    guidelines in several important respects.  First, the Chair never asked the
    appellant whether he was refusing to obtain legal representation, although the
    Chair had a duty to do so in light of the appellants previous attendance and
    his express request for counsel.  It is plain and obvious from the appellants
    exchange with the Chair (see para. 5 above) that the appellant thought he had
    no choice but to go ahead without counsel. In response to the Chairs question
    as to whether he intended to retain counsel, the appellant stated, I guess Im
    going to have to continue with this.
I talked to Wade Stevenson and he
    filled out my legal aid application and he took the name down of the lawyer
    that I was to contact and he never filed the application or contacted the
    lawyer, so.
  The Chair should have made inquiries to clear up
    this confusion and to ensure that the appellant was making a free and informed
    decision to proceed without counsel.  Further, as the Board similarly failed to
    do in
Bon Hillier
, the Chair in the present
    case did not appear to consider whether, to ensure a fair hearing,
amicus
counsel should be appointed.  Instead of making the inquiries
    required by the Boards guidelines, the Chair effectively encouraged the
    appellant to go ahead without counsel, telling him that he looked prepared.

[51]

Even if the Chair had correctly determined that
    it was initially appropriate to proceed without legal representation for the
    appellant, it became immediately obvious that the appellant was not in fact
    prepared and that he was completely incapable of representing himself.  For
    example, when invited to question the respondent, the appellant did not
    question him.  Instead, he made lengthy, mostly incoherent, submissions
    concerning his objections to the respondents diagnosis and prescription of
    treatment for the appellant.  By the end of his submissions, the appellant
    became clearly irrational, making incomprehensible statements, such as:  Pardon
    my rather unorthodox expression, mam, but condition was a term on a dit on an
    itch [
sic
] which is a numbers game that I
    really dont want to enter into with you (p. 10).

[52]

The Chair did not at any time try to focus the
    appellants clearly unintelligible discourse, attempt to remind him of the
    procedure to be followed, or conduct a further inquiry into his ability to
    represent himself at the hearing.  Rather, when the appellant had concluded
    speaking, even though he had not asked a single question, the Chair simply
    asked him if he had any further questions for the respondent.

[53]

As the respondents counsel fairly conceded, the
    Boards duty of fairness does not end after the initial mini-inquiry required
    under the guidelines but must continue throughout the hearing in order to
    ensure procedural fairness.  The Boards continuing obligation, as confirmed by
    the appeals judge, is reflected in the following guidelines, which I reproduce
    again here for ease of reference:

·

Instruct and assist the unrepresented person
    throughout the hearing while ensuring fairness to the other parties.

·

Accommodate the unrepresented persons lack of
    familiarity with the process while respecting the rights of other parties.  The
    panel should err on the side of providing more, rather than less, assistance to
    the unrepresented person.

·

Ask the unrepresented person if he has any
    questions and encourage questions throughout the hearing.

[54]

The Board failed to follow its own guidelines
    and to satisfy its duty of fairness in this case.

[55]

The appellants serious deterioration and
    decompensation became patently obvious very quickly and worsened throughout the
    hearing.  This should not have come as a surprise.  The respondent testified
    that the appellant has schizophrenia, a major mental illness, which manifests
    itself in delusional and psychotic behaviour.  The appellant described himself
    as:  Frantic.  Yeah, Im a little frantic. Im in an environment that I cant
    escape (p. 9).  It is clear that the stress of having to represent himself in
    a hearing of such importance exacerbated the appellants already compromised
    ability to function.

[56]

It was also clear, as the appellant himself stated,
    that he was incapable of organizing himself or representing himself.  In the
    midst of the hearing, the appellant complained:  I am a little bit
    disorganized at this point in time because Ive been given markers as pens, so
    I cant really write much down, I end up with a massive amount of paper, I
    cant type anything, cant print anything.  Im having issues with not being
    able to actually be organized or even have a way to actually get to anything
    that allows me to be slightly organized (p. 21).

[57]

Upon hearing the appellants complaint, and when
    the appellant failed to pose any questions to the respondent and later did not
    make responsive submissions but simply engaged in an incoherent rant, the Chair
    should have intervened and conducted further inquiries to ascertain whether the
    appellant could continue the hearing without legal representation.  Again,
    under its guidelines, the Board is to
err on the side of providing
more, rather than less, assistance to the unrepresented person
.
The Chairs failure to provide such assistance resulted in
    procedural unfairness to the appellant.

[58]

I recognize that the right to counsel is not
    absolute, in that an individual must be diligent in attempting to secure
    counsel. In some cases, after multiple adjournments, it has been found proper
    for a hearing to continue without counsel: see R. W. Macaulay and J. Sprague,
Practice
    and Procedure Before Administrative Tribunals
, 5th ed.
    (Toronto: Carswell, 2016), at para. 12.27(a)(v).  For these reasons, the
    Boards guidelines allow it to proceed without legal representation for the individual
    who is the subject of the hearing.  However, the Boards discretion to proceed
    in such a fashion is tempered by the requirement that the inquiry described in
    the guidelines be otherwise followed.

[59]

Importantly, the instant case was not one of an applicant
    abusing the Boards process by requesting multiple hearings.  This was only the
    appellants second attendance before the Board and he provided a legitimate
    excuse for his not yet having retained counsel.  His lack of understanding of
    the process was obvious.

[60]

At the first hearing, the appellant had clearly
    indicated his desire to have counsel of his own choice.  He never wavered from
    that position.  Given that he was an involuntary inpatient, he was clearly
    dependent on the patient advisor to arrange counsel on his behalf and, as he
    advised the Board, this had not been done.  His response to the Chair to the
    effect that he might be prepared to proceed without counsel was not an informed
    choice but arose out of his confusion concerning his right to legal
    representation, which the Chair did not clarify.  It was also qualified by the
    appellants own uncertainty, his guess as to whether he would be able to
    manage by himself and his indication that he was willing to try.

[61]

Moreover, as the court held in
Bon
    Hillier
, to ensure a fair hearing, legal representation
    for the appellant or
amicus
counsel was
    required so that the appellant could meaningfully challenge the opinion of the
    respondent.  For example, there were the questions of the possible shifting of
    a diagnosis and the adverse effects of the proposed medication, which the
    appellant raised in the present case but was unable to pursue because of his
    deteriorating condition.  These issues served in
Starson
to inform and legitimize Professor Starsons refusal to take
    prescribed medications and his capacity to make that decision. On that basis,
    the Supreme Court of Canada upheld the decision of the Superior Court of
    Justice, as confirmed by the Court of Appeal, to overturn the Boards decision
    of incapacity.

[62]

In the present case, the appellants ability to
    meaningfully make such arguments was precluded by the Chairs failure to
    ensure, in the manner set out in the Boards guidelines, that the appellants
    choice to represent himself was freely made and fully informed, and by the Chairs
    failure to intervene in the course of the hearing when the appellants
    condition clearly deteriorated.  As a result, the appellant did not have a fair
    hearing.

[63]

I acknowledge that it is not an easy task for
    Chairs of the Board to balance the need to run an efficient and expedient
    hearing with their overarching duty to ensure procedural fairness.  There is
    good reason that adjournments are not readily granted, and whether the individuals
    who are the subjects of applications before the Board have already been granted
    adjournments to obtain counsel is a factor to be considered pursuant to the
    guidelines.  The capacity hearings before the Board are designed to be brought
    and disposed of quickly for the benefit of the individuals who are the subjects
    of applications, including the appellant.

[64]

However, in this case, the Board erred by
    allowing hearing expediency and efficiency to override the appellants
    fundamental right to a fair hearing.

D.

Disposition

[65]

For these reasons, I would allow the appeal and
    refer this matter to a new hearing, which should be expedited, before a
    different Consent and Capacity Board.  Pending the disposition of this matter
    before another Board, the certificate of the appellants incapacity shall
    stand.

Released: EEG MAY 23 2017

L.B. Roberts J.A.


