



COURT OF APPEAL FOR ONTARIO

CITATION:  P.S. v. Ontario, 2014 ONCA 160

DATE: 20140228

DOCKET: M43397/M43413/M43422 (C57256)

Laskin J.A. (in Chambers)

BETWEEN

P.S.

Applicant (Appellant)

and

Her Majesty the Queen in Right of Ontario
,
    Centre for Addiction and Mental Health, Royal Ottawa Health Care Group, St.
    Josephs Health Care, London,
Attorney General for Ontario and Waypoint
    Centre for Mental Health Care

Respondents (Respondents in Appeal)

Karen R. Spector, for the moving party the Mental Health
    Legal Committee

David Morritt and Eric Morgan, for the moving party the
    Canadian Civil Liberties Association

Mercedes Perez and Karen Steward, for the appellant P.S.

Hart Schwartz and Joshua Hunter, for the respondents Her
    Majesty the Queen in Right of Ontario and the Attorney General for Ontario

Susan Adam Metzler and Kathryn Frelick, for the
    respondent Waypoint Centre for Mental Health Care

Heard: February 7, 2014



Laskin J.A.:

[1]

The Canadian Civil Liberties Association (CCLA) and the Mental Health
    Legal Committee (MHLC) seek leave to intervene as friends of the court in a
    forthcoming appeal,
P.S. v. Ontario
. The appellant, Mr. S., supports
    the motions to intervene. The respondents, Her Majesty the Queen in Right of
    Ontario, the Attorney General of Ontario and the Waypoint Centre for Mental
    Health Care, oppose them. For the following reasons, I grant the motions.

facts

[2]

Mr. S. has been detained as an involuntary patient at Waypoint under the
Mental Health Act
, R.S.O. 1990 c. M.7 (MHA), since 1996. In 2007, he
    brought an application for
habeas corpus
seeking a declaration that Waypoint
    had breached his rights under ss. 7, 9, 10(a), 12 and 15(1) of the
Charter
,
    and seeking remedies for those infringements under s. 24(1)
.
In 2011,
    Mr. S. filed an amended notice of application seeking a declaration that the
    involuntary detention and review provisions in ss. 20(1), 20(3), 20(4), 20(5),
    34, 39(1), 41(1), 41(2) and 41(3) of the MHA are inconsistent with ss. 7, 9, 12
    and 15(1) of the
Charter
and are of no force and effect.

[3]

In 2013, the application was dismissed, except for a finding that Mr. S.s
    section 15(1) equality right was infringed by Waypoints predecessor
    institution, the Mental Health Centre Penetanguishene:
P.S. v. Ontario
,
    2013 ONSC 2970.

[4]

Mr. S. appeals that decision. His appeal has been perfected but has not
    been scheduled. Mr. S. has asked that the appeal be heard by a five-judge panel
    so that the court may revisit its decision in
Starnaman v. Penetanguishene
    Mental Health Centre
(1995), 24 O.R. (3d) 701, motion to extend time in
    which to apply for leave dismissed, [1996] S.C.C.A. No. 129. In that case, the
    court held that the involuntary detention scheme in the MHA does not infringe
    ss. 7 or 12 of the
Charter
. In the decision under appeal, the
    application judge cited
Starnaman
as having answered conclusively
    that the MHA does not infringe the
Charter
and that it complies with
    the procedural component of the principles of fundamental justice: at para. 43.

THE MOTIONS

(1)

The test for intervention as a friend of the court

[5]

Rule 13.02 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194,

permits a non-party to intervene as a friend of the court for
    the purpose of rendering assistance to the court by way of argument. The test
    for intervention is set out in the familiar words of Dubin C.J.O. in
Peel
    (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd.
(1990), 74 O.R. (2d) 164, at p. 167:

Although much has been written as to the proper matters to be
    considered in determining whether an application for intervention should be
    granted, in the end, in my opinion, the matters to be considered are the nature
    of the case, the issues which arise and the likelihood of the applicant being
    able to make a useful contribution to the resolution of the appeal without
    causing injustice to the immediate parties.

[6]

In a
Charter
case, the proposed intervener usually has to
    establish at least one of three criteria: it has a real, substantial and
    identifiable interest in the subject matter of the proceedings; it has an
    important perspective distinct from the immediate parties; or it is a
    well-recognized group with a special expertise and a broadly identifiable
    membership base:
Bedford v. Canada (Attorney General)
, 2009 ONCA 669,
    98 O.R. (3d) 792, at para. 2.

[7]

On these motions, the respondents acknowledge that the proposed
    interveners meet at least one of these criteria. However they submit that the
    proposed interveners both fail to meet the final prong of the test set out in
Peel
:
    the CCLA will not make a useful contribution because its arguments are
    duplicative of the appellants; and the MHLC would cause injustice because it
    proposes to raise a new issue not raised before the application judge.

(2)

The CCLAs motion

[8]

The CCLA submits, and the respondents acknowledge, that it has specific
    expertise on several of the issues raised on this appeal: ss. 7, 9, 12 and 15
    of the
Charter
; the intersection between different
Charter
rights;
    the application of the
Charter
in various contexts; and the treatment
    and accommodation of mentally ill people.

[9]

If granted leave to intervene, the CCLA proposes to make three
    submissions. First, the MHA violates ss. 7 and 9 of the
Charter
because it lacks sufficient safeguards, oversight and opportunities to review a
    persons involuntary detention. Second, a failure to accommodate pre-lingual
    deafness (as alleged in Mr. S.s case) violates ss. 7, 9, 12 and 15. Third, the
Charter
applies to non-governmental mental health facilities and the
    government cannot evade its
Charter
obligations by divesting or
    outsourcing its functions to a corporation such as Waypoint.

[10]

The
    respondents counter that the CCLA will not make a useful contribution to the
    appeal because its proposed submissions duplicate Mr. S.s (on the issue of the
    alleged
Charter
breaches) or else are not contested (on the issues of
    whether the
Charter
applies to Waypoint and whether it has a duty to
    accommodate Mr. S.s disability).

[11]

I
    am satisfied that the CCLA will make a useful contribution to the courts
    understanding of the issues and therefore should be granted leave to intervene
    as a friend of the court. As a national organization concerned with the
    protection of civil liberties generally, the CCLA can offer its views on the
    systemic implications of the outcome of the case. This is a perspective that is
    not otherwise reflected in the appellants submissions. I note that at para. 51
    of his reasons, the application judge held:

The Applicant asserts that the very fact that he has been
    housed in a maximum security facility for sixteen years is proof that the MHA
    is not designed to handle long term detainees.  This argument overlooks
    the more fundamental question of how other long term detainees have fared under
    the same scheme.   The Applicants experience of long term detention
    under the MHA is relevant to the court but, in the absence of other comparable
    cases, only limited use should be made of it within the framework of a s. 52 analysis.

[12]

I
    am also satisfied that there are live issues between the parties about the
extent
to which the
Charter
applies to Waypoint and about the measures it
    must take to accommodate Mr. S.

[13]

Although
    I agree that the potential exists for some overlap between the CCLAs arguments
    and those of Mr. S., Mr. Morritt has undertaken to ensure that his submissions
    will not be repetitive. That undertaking should be sufficient to alleviate Ontarios
    concerns about the CCLAs intervention.

(3)

The MHLCs motion

[14]

Like
    the CCLA, the MHLC has both a substantial interest and special expertise in the
    issues raised on this appeal.

[15]

The
    MHLCs proposed submissions focus on what it says is a legislative gap that
    arises as a result of the Consent and Capacity Boards inability to supervise
    the terms of an involuntary patients detention under the MHA. The MHLC submits
    that, under the current regime, people such as Mr. S. have no recourse to
    challenge the terms of their involuntary detention other than though the
    lengthy, complex and expensive process of a
habeas corpus
application
    in the Superior Court. This, the MHLC submits, poses significant barriers to
    access to justice  yet access to justice is essential for compliance with the
    Rule of Law and Canadas international law commitments.

[16]

The
    MHLC submits that the legislative gap can be cured in one of two ways: (i) by
    conferring s. 24(1)
Charter
jurisdiction on the Board, in accordance
    with the decision in
R. v. Conway
, 2010 SCC 22, [2010] 1 S.C.R. 765;
    or (ii) by striking down the challenged provisions of the MHA so that the Act
    can be amended to provide the Board with the necessary powers of oversight.

[17]

The
    respondents oppose the MHLCs intervention for two reasons. First, they submit
    that the MHLC proposes to raise issues that were not raised in the court below.
    They say that nowhere in Mr. S.s lengthy factum on the application did he
    raise the issues of whether the Board should be granted s. 24(1) jurisdiction
    or whether the rule of law and Canadas international law commitments require
    access to an administrative tribunal rather than the ordinary courts. Second, Ontario
    submits that it would be prejudiced if the MHLC were permitted to raise those
    issues for the first time on appeal because it might have chosen to lead
    evidence on these issues if they had arisen on the
habeas corpus
application.

[18]

I
    draw a distinction between the MHLCs arguments about the potential s. 24(1)
    jurisdiction of the Board, and about the rule of law and Canadas international
    commitments. I agree with counsel for the MHLC that the rule of law and
    Canadas international commitments are not new, stand-alone issues but rather
    are interpretive tools to inform the courts analysis of the principles of
    fundamental justice: see
R. v. Hape
, 2007 SCC 26, [2007] 2 S.C.R. 292,
    at paras. 35-39;
Reference re Secession of Quebec
, [1998] 2 S.C.R. 217,
    at paras. 50-52; and Ruth Sullivan,
Statutory Interpretation
, 2d ed.
    (Toronto: Irwin Law, 2007), at pp. 34-35, 238-44. Submissions on these
    interpretive tools provide the sort of distinct perspective that makes
    intervention worthwhile for the court.

[19]

Whether
    the MHLC should be permitted to argue that the Consent and Capacity Board has
    s. 24(1) jurisdiction is a more difficult question. On my reading of the
    materials, Mr. S. did not take the position that the Board has, or should be
    deemed to have, the power to grant remedies under s. 24(1). On the contrary,
    the crux of Mr. S.s argument both before the application judge and on appeal
    is that the MHA scheme is unconstitutional precisely because the Boards
    jurisdiction is limited to affirming or rescinding a persons involuntary
    status (and since 2010, ordering a transfer to a different facility); it has no
    power to supervise the terms of the persons detention with a view to
    maximizing the persons liberty. It appears to be implicit in his argument that
    the Board also lacks the power to grant s. 24(1) remedies for individual
    breaches of the
Charter.

[20]

Viewed
    in this way, I am not persuaded that the MHLCs submissions on the Boards potential
    s. 24(1) jurisdiction raise a new issue. Rather, those submissions arise
    logically out of the issues already squarely before the court on the appeal. Mr.
    S.s primary submission is  and has consistently been  that the involuntary
    detention and review scheme created by the MHA is wholly inadequate to address
    the needs of long-term involuntary detainees like himself. To analyse that
    submission, the court will have to consider the scheme as a whole. That may
    include a consideration of any remedial powers the Board does or does not have
    to redress
Charter
breaches.

[21]

This
    is not a case like
Bedford v. Canada (A.G.)
, 2011 ONCA 209, 231 C.R.R.
    (2d) 113, in which the proposed interveners sought to argue not just that
    Canadas prostitution laws violate ss. 2(b) and 7 of the
Charter
, as
    the applicants had successfully argued below, but also that the laws violate s.
    15. In dismissing the motion to intervene, OConnor A.C.J.O. noted, at para. 6,
    that the proposed intervention does not merely raise an alternative legal
    argument in relation to the ss. 7 and 2(b) issues but rather raises an entirely
    new ground on which to challenge the legislation.

[22]

In
    my view, the MHLCs submissions on s. 24(1) are in the nature of an
    alternative legal argument that relate to issues raised and decided on the
habeas
    corpus
application.

[23]

I
    am also not persuaded that the respondents would suffer any injustice if the
    MHLC is permitted to intervene. The MHLC submits that, in the light of
Conway
,
    the question whether the Board has s. 24(1) jurisdiction is strictly a matter
    of legal argument and will not require the parties to call any new evidence. I am
    inclined to agree.

[24]

In
Conway
, the Supreme Court set out a two-part inquiry to determine
    whether an administrative tribunal can grant s. 24(1) remedies, at paras. 81-82:

[T]he first question is whether the administrative tribunal has
    jurisdiction, explicit or implied, to decide questions of law.  If it
    does, and unless it is clearly demonstrated that the legislature intended to
    exclude the
Charter
from the tribunals jurisdiction, the tribunal is a
    court of competent jurisdiction and can  consider and apply the
Charter
 and
Charter
remedies  when resolving the matters properly before it.

Once the threshold question has been resolved in favour of
Charter
jurisdiction, the remaining question is whether the tribunal can grant the
    particular remedy sought, given the relevant statutory scheme.  Answering
    this question is necessarily an exercise in discerning legislative
    intent.  On this approach, what will always be at issue is whether the
    remedy sought is the kind of remedy that the legislature intended would fit
    within the statutory framework of the particular tribunal.  Relevant
    considerations in discerning legislative intent will include those that have
    guided the courts in past cases, such as the tribunals statutory mandate,
    structure and function. [Citation omitted.]

[25]

The
    Attorney General submits it might have chosen to lead evidence on the
    legislative history of the Board to establish that the legislature intended it
    to hold hearings concerning specific narrow legal issues in a very short time
    frame. In my view, these arguments go to the Boards statutory mandate,
    structure and function, all of which can presumably be gleaned from an
    examination of the statute itself and relevant case law. At this stage, I do
    not anticipate a need for the parties to add to the record to address the
Conway
inquiry. However, if Ontario believes it is necessary to file fresh evidence, I
    will remain seized of the file and will case manage this or other issues that
    arise.

CONCLUSION

[26]

The
    CCLA and MHLC are granted leave to intervene. They shall accept the record as
    it stands, subject to any further order of the court. They may each file a
    factum of not more than 20 double-spaced pages, to be filed by March 28, 2014. They
    will each be allocated 20 minutes for oral argument.

[27]

The
    respondents are directed to file their factums by May 30, 2014.

John
    Laskin J.A.

February
    27, 2014


