



COURT OF APPEAL FOR ONTARIO

CITATION: Dickey v. Alexander, 2016 ONCA 961

DATE:  20161220

DOCKET: C59549

Simmons, Pepall and Huscroft 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.

BETWEEN

Dr. Robert Dickey

Appellant

and

Michael Alexander

Respondent

Janice Blackburn, for the appellant

Marshall Swadron and Nicole Walton, for the respondent

Heard:  November 15, 2016

On appeal from the order of Justice Stephen T. Bale of
    the Superior Court of Justice, dated September 29, 2014.

ENDORSEMENT

[1]

The respondent, Michael Alexander, was found not
    criminally responsible (NCR) on account of mental disorder in connection with
    index offences dating to April 2010, consisting of three counts of criminal
    harassment, two counts of failure to comply, possession of marijuana, causing a
    disturbance, assault causing bodily harm, mischief, and threatening death. He was
    admitted to Waypoint Centre for Mental Health Care (Waypoint) pursuant to a
    disposition order of the Ontario Review Board on April 25, 2013. He has a
    lengthy psychiatric history.

[2]

On May 21, 2013, the appellant, Dr. Robert
    Dickey, found that the respondent was incapable of consenting to treatment with
    anti-psychotic medications, mood stabilizers, and side effects medications. The
    respondent applied to the Consent and Capacity Board (Board) to review this
    finding, and on June 3, 2013, the Board found that the respondent was incapable
    of consenting to the proposed treatment. His appeal to the Superior Court was
    heard on January 28, 2014. On September 29, 2014, the Superior Court judge
    reversed the Boards decision.

[3]

Dr. Dickey appeals from the decision of the
    Superior Court judge.

[4]

Following the commencement of this appeal, the
    respondents appeal from the NCR verdict was allowed and the respondent was
    discharged from Waypoint on November 27, 2014. This court was informed that the
    respondent has since had a new trial that was resolved by plea agreement under
    which he pleaded guilty to some of the offences, and no NCR verdict was
    returned.

[5]

As a result of the various proceedings, the
    treatment proposed by Dr. Dickey in 2013 was never commenced.

[6]

Prior to the hearing of this appeal, the
    respondent served and filed a motion seeking to have the appeal quashed as
    moot, but chose not to proceed with it. However, given the status of the
    respondents NCR verdict, the parties were invited to make submissions at the
    hearing of the appeal on whether the appeal was moot.

[7]

It is common ground that there is no longer a
    live controversy that requires resolution. The Boards decision determined the
    capacity of the respondent for the purposes of consent to treatment as of the
    date of its hearing  that is, as of June 3, 2013, a date long-past. The
    Boards decision and the appeal from that decision were premised on an NCR
    order that no longer exists.

[8]

As noted above, the respondent is no longer at
    Waypoint. In these circumstances, a decision from this court would have no
    practical effect on the rights of the parties. The appeal is moot.

[9]

That being so, the question is whether the court
    should exercise its discretion to hear the appeal despite it being moot:
Borowski v. Canada
    (Attorney General)
, [1989] 1 S.C.R. 342.

[10]

The appellant submits that we should hear the
    appeal because if the Superior Court judge's decision is allowed to stand,
    it may be used in support of an argument that the respondent expressed a
    prior capable wish that binds future substitute decision makers under s. 21
    of the
Health
    Care Consent Act
1996,
S.O. 1996, c. 2, Schedule A, as amended
, and
    so may preclude the administration of the relevant drugs without the
    respondents consent.

[11]

It is enough for present purposes to reiterate
    that the decision under appeal concerns the respondents capacity at the time
    the Boards decision was made. The Superior Court judges decision may be
    evidence relevant to determining the respondents capacity in a future case,
    but it is not clear that it would be determinative. In any event, s. 36 of the
    Act establishes a procedure pursuant to which a substitute decision maker and a
    healthcare practitioner can obtain permission for consent to treatment despite
    a prior capable wish.

[12]

We are not persuaded that this is an appropriate
    case to exercise our discretion to hear the appeal. Not only would a decision
    of this court have no practical effect on the rights of the parties, it would
    have no broader application beyond the parties. Moreover, as noted above, the
    concern relating to a prior capable wish is specifically addressed by s. 36 of
    the Act. In any event, our decision not to hear the appeal is not to be taken
    as a comment on the merits of the order under appeal.

[13]

The appeal is dismissed as moot.

Janet Simmons J.A.

S.E. Pepall J.A.

Grant Huscroft J.A.


