



COURT OF APPEAL FOR ONTARIO

CITATION: Gajewski v.
    Wilkie, 2014 ONCA 897

DATE: 20141216

DOCKET: C56661

Laskin, Rouleau and Epstein JJ.A.

BETWEEN

Bartosz Gajewski

Appellant

and

Dr. Treena Wilkie

Respondent

Suzan E. Fraser, for the appellant

Kendra Naidoo, for the respondent

Heard: June 5, 2014

On appeal from the judgment of Justice Andra Pollak of
    the Superior Court of Justice, dated February 6, 2013.

Epstein J.A.:

OVERVIEW

[1]

On March 24, 2011, the appellant, Bartosz Gajewski, was detained at the
    Centre for Addiction and Mental Health, in Toronto by order of the Ontario
    Review Board, following a verdict of not criminally responsible on account of
    mental disorder at his trial on charges of assault and attempted kidnapping. 
    After the appellant refused medication recommended for his delusional disorder,
    a physician, the respondent, Dr. Treena Wilkie, found him incapable with
    respect to treatment. At a subsequent review hearing, the Consent and Capacity
    Board confirmed this incapacity finding.

[2]

Mr. Gajewski appealed the decision of the Consent and Capacity Board
    (the Board) to the Superior Court.  Justice Whitaker appointed an
amicus
    curiae
to assist Mr. Gajewski.
Amicus
advanced Mr. Gajewskis
    arguments and made additional submissions.  In her endorsement dated February
    6, 2013, Pollak J. found the Boards decision reasonable and dismissed the
    appeal.

[3]

Mr. Gajewski appeals that decision to this court.  He submits that the
    evidence does not support the test for incapacity.  He further alleges
    ineffective assistance of
amicus
and seeks to introduce fresh evidence
    to support this ground of appeal.

[4]

I would dismiss the appeal.  In my view, the respondents evidence,
    corroborated by other evidence, supports the Boards conclusion that the
    appellant is incapable with respect to treatment with antipsychotic
    medication.   In my view, this appeal can be disposed of without dealing with
    the appellants allegation of ineffective assistance of
amicus
.

STATUTORY TEST FOR CAPACITY

[5]

This appeal arises in the context of a patients legal right to
    determine his or her own medical treatment. In Ontario, s. 10(1) of the
Health
    Care Consent Act, 1996
, S.O. 1996, c. 2, Sched. A (the Act), provides
    that a health practitioner is precluded from administering a proposed treatment
    to a patient, and is required to take reasonable steps to ensure that the
    treatment is not administered, unless consent to the treatment is first
    obtained (1) from the patient, where the patient is capable with respect to the
    treatment; or (2) from the patients substitute decision-maker, where the
    patient is incapable with respect to the treatment.

[6]

Section 4(1) of the Act establishes two criteria for capacity. To be
    capable with respect to a treatment, a person must be able to understand the
    information that is relevant to making a decision about the treatment and must
    be able to appreciate the reasonably foreseeable consequences of a decision or
    lack of decision.  Section 4(2) provides that a person is presumed to be
    capable with respect to treatment. This presumption of capacity is displaced
    only if one or both of the s. 4(1) criteria for capacity are not met.

[7]

In
Starson v. Swayze
, 2003 SCC 32, [2003] 1 S.C.R. 722, at
    para. 78, Major J., writing for the majority, explained the two criteria for
    capacity to consent to a treatment, as follows:

First, a person must be able to understand the information that
    is relevant to making a treatment decision. This requires the cognitive ability
    to process, retain and understand the relevant information.... Second, a person
    must be able to appreciate the reasonably foreseeable consequences of the
    decision or lack of one. This requires the patient to be able to apply the
    relevant information to his or her circumstances, and to be able to weigh the
    foreseeable risks and benefits of a decision or lack thereof.

OVERVIEW OF FACTUAL BACKGROUND

[8]

The appellant was born in Poland in 1971 and immigrated to Canada in
    1989.  He has a history of mental illness dating back to at least 2003.

[9]

Upon admission to the Centre for Addiction and Mental Health, (CAMH),
    on March 24, 2011, the appellant was cared for by Dr. Swayze.  The doctor
    proposed antipsychotic medication and provided the appellant with information
    about the suggested treatment.  At that time, the appellant denied experiencing
    any on-going delusions but acknowledged that he had had a fixed false belief at
    the time of the index offences.  He agreed with the diagnosis of delusional disorder.

[10]

On
    May 20, 2011, the appellant was transferred to the minimum security unit at
    CAMH and into the care of Dr. Wilkie.  From then to December 2011, the
    appellant, with some hesitation, acknowledged suffering from a delusional
    disorder.

[11]

By
    the end of December 2011, the appellants view of his condition and the risks
    and benefits of treatment had significantly changed.  As a result, over the
    next month, Dr. Wilkie assessed the appellants capacity to consent to
    antipsychotic medication.

[12]

On
    January 31, 2012, on the basis of tests, her assessment of the appellant and a
    consultation with another doctor, Dr. Wilkie informed the appellant that she
    found him incapable of consenting to treatment. The appellant immediately
    expressed his wish to have a hearing before the Board.

THE BOARD HEARING

[13]

On
    February 7, 2012, the Board held a hearing to review Dr. Wilkies finding of
    incapacity to consent to antipsychotic medication.

[14]

Dr.
    Wilkie testified at the hearing.  She described, in considerable detail, the
    appellants early insight into his medical condition and then his precipitous
    change of beliefs.

[15]

When
    the appellant was first admitted to CAMH on March 24, 2011, he denied that he
    retained any delusional beliefs regarding the victim of the index offences. 
    But, he acknowledged that, at the time of committing the offences, he did have
    such delusional beliefs.  He agreed with the diagnosis of delusional disorder. 
    Upon being given information about the nature of his disorder and medications
    that he should consider taking, the appellant selected a particular
    antipsychotic medication.  At this time, the appellants attending physician
    considered him capable of consenting to this treatment.

[16]

But
    the medication was not given to him.  It was discovered that the appellant had
    abnormally high levels of liver enzymes in his blood.  This symptom had to be
    explored, precluding treatment with the medication.

[17]

By
    the end of 2011, the appellants liver enzymes had normalized. A specialist
    determined that there was no need for further investigation into the liver
    issue.  As a result, there was more overt discussion with the appellant about
    starting him on antipsychotic medication. Around this time, the appellant began
    to express a different view of his mental illness.  Treatment notes from CAMH
    document this change:

·

On December 12, 2011, the appellant alluded to the possibility
    that he had been misdiagnosed.  He declined medication.

·

On December 30, 2011, the appellant stated that he would not take
    medication.  The appellant was anticipating an upcoming hearing before the
    Ontario Review Board (the ORB). He intimated that he would appeal his NCR
    status.  He said that Jehovah would make sure that information came forward in
    due time.  He stated beliefs about the victim of the index offence similar to
    those that apparently motivated the offence.  Further, he stated that the index
    offence was justifiable force.

·

On January 3, 2012, the appellant stated that he did not believe
    he suffered from a delusional disorder.  He refused any kind of treatment.  He
    again expressed his belief that he had been persecuted by the victim of the
    index offence.  He intended to challenge his NCR status. He was considering
    litigating against those who had wronged him, including the victim of the index
    offence, Dr. Wilkie and CAMH.

·

On January 11, 2012, the appellant again stated that he was not
    interested in any sort of treatment, saying Jehovah will act.  He believed
    there was a 0% chance that he had a delusional disorder.  He did not believe
    there would be any benefit in taking medication or any risk in not taking it.

·

On January 31, 2012, Dr. Wilkie reviewed the appellants recent
    treatment notes with him.  He asserted that Jehovah would be making corrections
    soon, which would lead to Dr. Wilkies going to jail and losing her license.

[18]

On
    cross-examination, Dr. Wilkie acknowledged that in a report for the ORB dated
    December 29, 2011, she had concluded that the appellant presented as capable of
    consenting to treatment with medication.  Dr. Wilkie explained that, in the
    month between writing that report and finding the appellant lacking in capacity
    on January 31, 2012, she had reassessed the appellants capacity to consent. 
    At the end of December 2011, it became clear to her that the appellant was no
    longer refusing medication because of his concerns about his liver, but because
    he did not agree that he suffered from a delusional disorder.

[19]

Dr.
    Wilkie also expressed her view that medication would likely reduce the
    intensity of the appellants delusions.  Without it, his delusions would
    persist, as would his risk of re-offending. Dr. Wilkie also testified that, in
    her opinion, the appellants mental disorder affected his ability to understand
    the information about the proposed treatment and his ability to apply that
    information to himself.  As a result, in the respondents opinion, the appellant
    failed both branches of the test for capacity to consent.

[20]

The
    appellant also testified at the hearing. He told the Board that he believed he
    had delusions. However, he also believed they were true.  When asked to explain
    this discrepancy, he said, I cant explain that.  He agreed he believed that
    Jehovah would prove the diagnosis of delusional disorder to be false.  The
    appellant also testified that he believed that medication would reduce the
    strength of his delusional beliefs.  When asked why he had not communicated
    that belief to Dr. Wilkie, he stated, That was my decision.  I didnt have a
    valid or any reason, I just didnt do [so].

[21]

During
    the Board hearing, the appellant spoke extensively about his concerns relating
    to the side effects of the proposed medication, a topic he had researched. 
    These concerns caused him to refuse to take the medication.  He said, I am
    primarily concerned about my physical health.

THE BOARD DECISION

[22]

The
    panel released its decision the day after the hearing, on February 8, 2012.
    Written reasons followed on February 15, 2012.

[23]

In
    her reasons, the presiding Board member reviewed the evidence of the
    appellants index offence and his mental disorder.  She then proceeded to
    analyze the two branches of the test under s. 4(1) of the Act, making findings
    of fact in the process.

[24]

The
    Board made the following findings of fact of importance here:

·

Dr. Wilkies capacity assessment was a process that evolved
    over time;

·

The appellants evidence was inconsistent on key points;

·

The appellant moved from a consistent acknowledgement of his
    mental disorder to a statement on January 11, 2012, that there was 0% chance
    that he had a mental disorder;

·

By the day of the hearing, the appellant had returned to a
    delusional state similar to that from which he suffered in 2009 when he
    attempted to kidnap the victim of the index offences;

·

The panel was not convinced that the appellant perceived any
    potential benefits from the medication; and

·

The appellant viewed the world through the lens of his mental
    disorder.

[25]

With
    respect to the first branch of the test, the Board concluded, at p. 9, that:

[The appellants] distortion of his relationship with the
    victim [of the index offences], and his preoccupation with religion, both
    caused by his mental disorder, prevented him from processing, retaining and
    understanding the relevant information.

[26]

With
    respect to the second branch of the test, the Board concluded, at p. 10, that:

The evidence taken as a whole, including [the appellants] own
    testimony, amply supported the doctors conclusions concerning [the
    appellants] capacity.  [The appellant] was unable to see that he was in fact
    suffering from serious manifestations of mental illness.  He therefore was not
    able to evaluate information concerning the proposed types of medications as it
    related to his own circumstances, a fact which rendered him incapable to make a
    decision concerning them.

[27]

Accordingly,
    the Board upheld the respondents finding that the appellant was incapable with
    respect to treatment with antipsychotic medication.

THE APPEAL

[28]

Mr.
    Gajewski appealed the Boards decision to the Superior Court.  Prior to Mr.
    Gajewskis perfecting his appeal, the case management judge, Whitaker J.,
    determined that an
amicus curiae
should be appointed.

[29]

Mr.
    Nemetz was selected as
amicus
.  The appellant prepared his own
    factum.  Mr. Nemetz filed the appellants factum as well as one that he had
    written.

[30]

At
    the hearing, a discussion took place as to who would present oral argument on
    the appellants behalf.  Ultimately, the appellant stated that his preference
    would be that Mr. Nemetz would make the arguments for me, adding, perhaps he
    could use some of my arguments when he presents the case before Your Honour. 
    The appellant further stated that had he made oral submissions, he would not
    have gone beyond what was written in his factum.

[31]

The
    appeal judge was not persuaded that there were any reversible errors in the
    Boards reasoning.  She held that the Boards conclusion was within the
    reasonable range of possibilities and dismissed the appeal.

ISSUES

[32]

The
    appellant raises the following issues for determination by this court:

1.

What standards
    of review apply to the Boards and the Superior Court Justices decisions?

2.

Did the appeal
    judge err in concluding that the Boards decision of incapacity was supported
    by the evidence and within the reasonable range of possibilities?

3.

Should the
    appeal judges decision be overturned based on the allegedly ineffective
    assistance of
amicus
?

ANALYSIS

ISSUE ONE:
    What standards of review apply to the Boards and the Superior Court Justices
    decisions?

[33]

Determining
    whether the appellant was capable of making his own decision regarding
    treatment with antipsychotic medication required the Board to apply, and the
    appeal judge to review, the evidence before it to the statutory test for
    capacity set out in s. 4(1) of the Act.  In
Starson
, at paras. 23 and
    84, the Supreme Court was unanimous that this is a question of mixed fact and
    law that is reviewable on a standard of reasonableness.  But, a reviewing court
    should not defer to the Boards findings if the Board has misunderstood the
    statutory test.  See also
Dunsmuir v. New Brunswick
, 2008 SCC 9,
    [2008] 1 S.C.R. 190, at paras. 47-49;
Giecewicz v. Hastings
, 2007 ONCA
    890, 288 D.L.R. (4th) 587, at para. 13, leave to appeal to S.C.C. refused,
    [2008] S.C.C.A. No. 97.

ISSUE TWO: Did
    the appeal judge err in concluding that the Boards decision of incapacity was
    supported by the evidence and within the reasonable range of possibilities?

(i) Was the respondents evidence corroborated?

[34]

The
    appellant submits that the Board erred by not considering s. 14 of the
Evidence
    Act
, R.S.O. 1990, c. E.23. Section 14 states:

An opposite or interested party in an action by or against one
    of the following persons shall not obtain a verdict, judgment or decision on
    the partys own evidence, unless the evidence is corroborated by some other
    material evidence:

1. A person who has been found,

...

iii. incapable by a court in Canada or elsewhere.

2. A patient in a psychiatric facility.

[35]

In
Anten v. Bhalerao
, 2013 ONCA 499, 366 D.L.R. (4th) 370, this court
    considered the application of s. 14 in proceedings before the Board.   Writing
    for the court, Rosenberg J.A. held, in
obiter
, that in order for the
    Board to uphold a doctors finding of incapacity, the medical evidence had to
    be corroborated.

[36]

Here,
    the appellant submits that the respondents evidence was not corroborated.  The
    appellant contends that Dr. Wilkie provided no evidence for the basis of her
    opinion that the appellant was incapable other than that the appellant
    disagreed with her.  Further, the appellant asserts that there was no factual
    foundation for the conclusion that this disagreement was the result of the
    appellants mental illness.  In support of this contention, the appellant
    relies on the fact that it was only when he started to question Dr. Wilkies
    diagnosis and the proposed medication that the respondent changed her opinion
    about his capacity.

[37]

I
    do not accept this submission.

[38]

As
    previously indicated, the appellant testified before the Board. In
Anten
,
    at para. 30, Rosenberg J.A. wrote, I accept that in an appropriate case a
    physician's evidence can be corroborated, within the meaning of s. 14, by a
    patient's own evidence.  The Board had the opportunity to observe and question
    the appellant.  It was in a position to assess the appellants testimony in the
    context of other evidence, including his documented conversations with health
    care workers and family members.  In its reasons, the Board expressly adverted
    to the appellants testimony at the hearing. The Board described the
    appellants evidence as being consistently inconsistent on key points.

[39]

In
    addition to Dr. Wilkies evidence, there was documentary evidence. The Board
    specifically referenced the fact that Dr. Wilkie sought a second opinion from a
    Dr. Pearce regarding the appellants capacity to consent.  Dr. Pearce met with
    the appellant.  Dr. Pearce prepared a progress note, dated January 25, 2012,
    that was before the Board.  In the progress note, Dr. Pearce stated that the
    appellant did not accept that he suffered from delusions and that he does not
    have any insight into the risks and benefits of treating or not treating his
    mental illness.   Dr. Pearces note concludes that, in his opinion, the
    appellant failed both branches of the test for capacity in the Act.

[40]

While
    Dr. Pearces note is hearsay given he did not testify at the hearing, the Board
    may admit hearsay evidence:
Starson
, at para. 115;
Anten
, at
    para. 32;
Statutory Powers Procedure Act
, R.S.O. 1990, c. S.22, s.
    15.  In
Starson
, at para. 115, writing for the majority, Major J.
    cautioned that although hearsay was admissible before the Board, the Board
    must be careful to avoid placing undue emphasis on uncorroborated evidence
    that lacks sufficient indicia of reliability.  There is no evidence here, and
    the appellant has pointed to none, to suggest that Dr. Pearces hearsay
    evidence was lacking in reliability.

[41]

The
    documents the Board admitted into evidence also included other progress notes
    and a hospital report.  Although these documents were primarily prepared by Dr.
    Wilkie, I note that the December 29, 2011, Hospital Report to the Ontario
    Review Board lists Clinical Director Padraig L. Darby as a co-author with Dr.
    Wilkie.  In addition, the December 12, 2011, progress note was authored by a
    resident doctor, who met with the appellant along with Dr. Wilkie.

[42]

In
    summary, Dr. Wilkies testimony that the appellant lacked capacity to consent
    was corroborated by a number of sources.

(ii) Was the Boards finding of lack of capacity a reasonable
    one?

[43]

The
    appellant submits that the Board erred in its application of the statutory test
    because the respondent failed to adduce sufficient evidence of incapacity.  
    The appellant testified that he had weighed the pros and cons and disagreed
    with the respondent as to what was in his best interests.  The appellants
    primary consideration was his physical health and the potential adverse effects
    of the proposed medication.

[44]

The
    appellant also submits that the timing of the respondents assessment
    undermines its credibility.  In her report for the ORB, dated December 29,
    2011, the respondent concluded that the appellant was capable of consenting to
    treatment.  Just over a month later, on January 31, 2012, the respondent came
    to the opposite conclusion.  In the appellants view, it was only when he began
    to question the respondents diagnosis and treatment plan that the respondent
    decided he was incapable.

[45]

As
    stated by Major J. in
Starson
, at para. 91, The enforced injection of
    mind-altering drugs against the respondents will is highly offensive to his
    dignity and autonomy, and is to be avoided unless it is demonstrated that he
    lacked the capacity to make his own decision. As
Starson
illustrates,
    the Board must take care to ensure, in such a circumstance, that the attending
    physician has proven that the patient fails the statutory test for capacity. 
    The test is not whether the treatment is, in the Boards opinion, in the
    patients best interests.

[46]

In
    both
Giecewicz
and
Starson
, the focus of the analysis was the
    second branch of the test for capacity.  I will therefore first determine
    whether the Boards decision with respect to the second branch was
    reasonable.   For ease of reference, I repeat how Major J. in
Starson
,
    at para. 78,  described the second branch:

[A] person must be able to appreciate the reasonably
    foreseeable consequences of the decision or lack of one. This requires the
    patient to be able to apply the relevant information to his or her
    circumstances, and to be able to weigh the foreseeable risks and benefits of a
    decision or lack thereof.


[47]

In
Starson
, at para. 79, Major J. made the following important
    observation:

[A] patient is not required to describe his mental condition as
    an illness, or to otherwise characterize the condition in negative terms. 
    Nor is a patient required to agree with the attending physicians opinion
    regarding the cause of that condition.
Nonetheless, if
    the patients condition results in him being unable to recognize that he is
    affected by its manifestations, he will be unable to apply the relevant
    information to his circumstances, and unable to appreciate the consequences of
    his decision
. [Emphasis added.]

[48]

Similarly,
    in
Giecewicz
, at paras. 38-40, Doherty J.A. wrote for this court:

I have set out the evidence in some detail because, in my view,
    that evidence speaks to the very situation described by both Major J. and
    McLachlin C.J.C. in the passages from their reasons in
Starson v. Swayze
quoted above.  According to Dr. Hastings, the appellant suffers from a mental
    disorder that in the words of Major J.  makes her unable to apply the relevant
    information given to her to her own circumstances and unable to appreciate the
    consequence of her decisions.  Dr. Hastings testified that the appellants
    inability to acknowledge the existence of the condition for which he had
    recommended medication thoroughly undermined her ability to evaluate that information
    and his advice.

Dr. Hastings evidence also reveals two of the three indicators
    of incapacity based on an inability to appreciate consequences referred to by
    McLachlin C.J.C.   Dr. Hastings opined that the appellant was unable to
    acknowledge the fact that the condition for which he recommended treatment may
    affect her (the first criterion described by McLachlin C.J.C.), and that her
    choice to refuse treatment was substantially based on her delusional belief
    system (the third criterion described by McLachlin C.J.C.).

The Board accepted Dr. Hastings opinion which was virtually
    unchallenged.  Parts of the appellants own testimony tended to confirm that
    assessment.  The Board did not act unreasonably in accepting his opinion.

[49]

In
    my view, the evidence supports the Boards findings that the appellant: 1) was
    suffering from the manifestations of a mental disorder, including entrenched
    false beliefs, persecutory delusions and religious preoccupation; and 2) was
    unable to see that he was suffering from these manifestations at the time of
    the hearing.  Although there were moments during the hearing at which the
    appellant purported to accept that his beliefs about the victim of the index
    offences were delusions, these moments were contradicted by his other testimony
    and by a month of clinical observation by Dr. Wilkie and her colleagues.  The
    appellant could provide no explanation for his shifting expression of his own
    beliefs.  It was open to the Board to conclude that the appellant did not truly
    believe that he suffered from delusions.  It follows from the cited passages
    from
Starson
and
Giecewicz
that the appellant was not able to
    apply the relevant information to his circumstances and thus was not able to
    appreciate the reasonably foreseeable consequences of taking or not taking the
    proposed medication.

[50]

There
    was also evidence to support the Boards finding that Dr. Wilkies capacity
    assessment was a process that could change over time.  Thus, the fact that
    the respondents views on the appellants capacity changed over the course of a
    month did not undermine her opinion. The evidence was that the appellants
    condition might wax and wane.  Moreover, until the appellants liver enzymes
    had normalized, the respondent and her team at CAMH could not force the issue
    of the proposed medication.  As a result, the question of capacity to consent
    to this treatment did not truly arise until late in 2011.  As discussed, Dr.
    Wilkies finding of incapacity was reached after a series of meetings with the
    appellant in late December of 2011 and in January of 2012, including a
    consultation with Dr. Pearce.

[51]

The
    appellant directed many of his submissions to his concern about the side
    effects of the proposed medication.  He also asserted that the respondent had
    presented no evidence that the medication would ameliorate his condition.

[52]

As
    stated above, Dr. Wilkie testified that the medication would diminish the
    intensity of the appellants delusions.  True, she did not present the Board
    with anything beyond her professional opinion that the proposed medication
    would help the appellant.  However, with respect, the appellants submissions
    on the efficacy of the proposed medication are not particularly germane to the
    question before the Board.  As stated by Doherty J.A. in
Giecewicz
, at
    para. 43:

It is not the Board's task to weigh the risks and benefits of
    the proposed treatment or to make any determination as to the advisability of
    the treatment from a medical standpoint. The issue before the Board was the
    appellant's capacity to make the relevant decisions.

[53]

The
    only relevance of submissions relating to the benefits and side effects of the
    proposed medication to the question of capacity is whether the appellant has a
    rational justification for refusing the treatment.  While I do not doubt that
    the appellant has a sincere, and perhaps justified, concern about potential
    adverse effects from the proposed medication, the rational nature of this
    concern cannot, on its own, overcome the preponderance of evidence that
    supports the reasonableness of the Boards finding of incapacity on the second
    branch.

[54]

Given
    my conclusion on the second branch, I do not need to consider whether the Board
    erred with respect to the first branch of the test.  I would note, however,
    that in both
Starson
and
Giecewicz
, the first branch was not
    at issue because it was accepted that the patients were intelligent and able to
    process, retain, and understand the relevant information.

[55]

Here,
    Dr. Wilkie testified that:

[I]t was clear to me that in the abstract Mr. Gajewski
    understood what the medication was, what the potential side effects of
    medication was, what the potential benefits of medication would be for another
    individual.  But that due to the fact that he was not of the opinion that he
    suffered from a delusional disorder, that he was unable to apply that knowledge
    to himself.

[56]

On
    the basis of this testimony, I am of the view that the reasonableness of the
    Boards finding that the appellant lacked capacity to consent under the first
    branch may be in some doubt.  However, as this appeal can be resolved without
    addressing this issue, I would not pursue it further.

[57]

For
    these reasons I would not give effect to this ground of appeal.

ISSUE THREE:
    Should the appeal judges decision be overturned based on the allegedly
    ineffective assistance of
amicus
?

[58]

Ineffective
    assistance of
counsel
was a ground of appeal that, at law, would have
    been available to the appellant:
Gligorevic
, at paras. 60-65. However,
    whether an argument based on ineffective assistance of
amicus curiae
is available is quite a different matter.

[59]

In
    my view, it is an issue that need not be addressed in order to determine the
    appeal as I have reviewed the Boards decision on the same standard of review that
    the Superior Court applied    standard of reasonableness  and have
    independently concluded that there is no reason to interfere with the Boards
    decision.

[60]

Nonetheless,
    as a serious allegation has been raised before this court, in relation to the
    assistance of
amicus
, I feel compelled to say that I have seen nothing
    in the record that gives rise to any concern about the assistance
amicus
provided
    the appellant.

[61]

It
    follows that I would dismiss the appellants motion to introduce fresh evidence
    since the proposed evidence relates to this ground of appeal.


DISPOSITION

[62]

For
    these reasons, I would dismiss the appeal.  I would make no order as to costs.

Released: December 16, 2014 (G.E.)

Gloria
    Epstein J.A.

I
    agree John Laskin J.A.

I
    agree Paul Rouleau J.A.


