



COURT OF APPEAL FOR ONTARIO

CITATION: D.H. v. Ferencz, 2017 ONCA 20

DATE: 20170113

DOCKET: C61327

Strathy C.J.O, MacPherson and Hourigan JJ.A.

BETWEEN

D. H.

Appellant

and

Dr. Joseph Ferencz

Respondent

Mercedes Perez, appearing as
amicus curiae

Janice Blackburn, for the respondent

Heard: January 11, 2017

On appeal from the order of Parayeski J. of the Superior
    Court of Justice, dated November 20, 2015.

ENDORSEMENT

[1]

The Consent and Capacity Board (the Board) found the
    appellant incapable with respect to mood stabilizers (lithium), anti-psychotic,
    benzodiazepines and anticholinergic medication, in both oral and injectable
    form. That decision was upheld on appeal at the Superior Court.

[2]

The appellant now appeals to this court. For the
    reasons that follow, we would dismiss this appeal.

Facts

[3]

The appellant
is
    49 years old. Starting in 2010, he was repeatedly hospitalized in psychiatric
    facilities for short periods of time. Following an incident on October 23, 2014,
the appellant
was
    charged with assault, breach of probation, and forcible seizure of a child. He
    was found not criminally responsible on those charges, and has been detained at
    St. Josephs Healthcare Hamilton since March 16, 2015.

[4]

The appellants
attending psychiatrist, Dr. Ferencz, diagnosed him with
    bipolar disorder. On May 21, 2015, Dr. Ferencz found
the
    appellant
not mentally capable to consent to
    treatment for this disorder.
The appellant
applied to the Board to challenge this incapacity finding.
    A hearing proceeded on May 28, 2015. The Board found
the
    appellant
incapable with respect to the four
    classes of medication listed above.

[5]

The appellant
submits
    that the hearing at the Board was procedurally unfair, in that the requirements
    of s. 20 of the Ontario
Evidence Act
, R.S.O. 1990, c. E.23 were not
    complied with. He further submits that the evidence as a whole demonstrates
    that the Boards decision was unreasonable. Finally, he submits that the
    Boards reasons were inadequate, in particular the finding of incapacity with
    respect to medications other than lithium.

Analysis

[6]

Prior to the Board hearing,
the appellant
prepared written
    materials that were included in his clinical record at his request. He also
    elected to testify at the hearing. His oral testimony appeared to contradict at
    least part of the written materials, and the Board chair posed questions to
the appellant
to pursue the
    contradictions.
The appellant
was represented by counsel at the hearing, who did not
    object to the chairs line of questioning.

[7]

On appeal, amicus submits that the
    chairs failure to refer
the appellant
to each and every specific point in the written materials that
    was contradictory was unfair and a violation of s. 20. We reject this submission.

[8]

A central issue before the Board was
    whether
the appellant
is
    able to admit to the possibility that he is affected by the manifestations of
    bi-polar disorder. In his oral testimony before the Board there was a
    suggestion that he is able to admit to that possibility. That testimony was not
    entirely consistent with
the appellants
written statement. The specific written statement was put
    to
the appellant
and
    questions were asked of him exploring the inconsistency. In our view, to the
    extent that s. 20 may be applicable to a Board hearing, it was complied with in
    this case.

[9]

Amicus argues that the decision of the
    Board respecting lithium was unreasonable, when the totality of the evidence is
    considered. We disagree. The Board is a highly specialized tribunal. It
    correctly stated the statutory test for capacity found in the
Health Care
    Consent Act, 1996
, S.O. 1996, c. 2, Schedule A, and carefully analyzed the
    evidence and relevant case law.

[10]

In
Fleming v. Starson
, 2003 SCC
    32, [2003] 1 S.C.R. 722, the Supreme Court of Canada held, at para. 5, that on
    questions of treatment incapacity, the Boards conclusion must be upheld
    provided it was among the range of conclusions that could reasonably have been
    reached on the law and evidence. We see no basis to interfere with the Boards
    conclusion.
The appellant
has not demonstrated that the Board made an error of law or
    misapprehended the evidence.

[11]

Amicus argues that there was no factual
    foundation for the Boards finding of incapacity with respect to antipsychotics,
    benzodiazepines and anticholinergics. He submits that Dr. Ferencz only
    discussed lithium with
the appellant
, and that the other medications were only mentioned in a
    single sentence in the summary submitted to the Board.

[12]

We note that this argument was not
    raised by
the appellant
at the first level of appeal.  This court will generally
    not entertain new issues on appeal, save for exceptional circumstances:
M.M.
    v. De Souza
, 2016 ONCA 155. We are not satisfied that exceptional
    circumstances have been established in this case.

[13]

In any event, we agree with the
    respondent that there was an evidentiary foundation for the Boards decision to
    find
the appellant
incapable
    with respect to those medications. Dr. Ferencz was asked by the Board what
the appellants
objections were to
    those medications, immediately after Dr. Ferencz had referred to all of the medications
    in issue. Dr. Ferencz replied that
the appellant
did not feel that he had an illness that required those
    medications, and that
the appellant
felt there were other equally effective treatments that did
    not involve medicine. There was, therefore, a factual foundation for the
    Boards findings with respect to the medications other than lithium.

[14]

The appeal is dismissed.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

C.W. Hourigan J.A.


