



COURT OF APPEAL FOR ONTARIO

CITATION: Tolias (Re), 2016 ONCA 463

DATE: 20160613

DOCKET: C60801

Epstein, Pepall and van Rensburg JJ.A.

IN THE MATTER OF: Helen Tolias

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for the appellant

Katherine Beaudoin, for the respondent, the Attorney
    General for Ontario

Janice Blackburn, for the respondent, the Person in
    Charge of St. Josephs Healthcare Hamilton

Heard: May 12, 2016

On appeal against the disposition of the Ontario Review
    Board dated June 29, 2015.

Pepall J.A.:

Overview

[1]

The appellant appeals from the June 29,
    2015 disposition of the Ontario Review Board (the Board) ordering that she be
    detained on the secure forensic unit at St. Josephs Healthcare, Hamilton, West
    5th Campus (the Hospital). As a result of the disposition, she was to be
    transferred from the general forensic unit of the Hospital and her permission
    to live in Hospital-approved accommodations in the community was revoked.

[2]

The disposition resulted from an early
    hearing request made by the Person in Charge of the Hospital on May 6, 2015,
    due to a significant deterioration in the appellants mental state and
    behaviour.

[3]

The appellant appeals this disposition
    on the basis that: (1) the Board breached the rules of natural justice by
    conducting a hearing with two panel members who had conflicts of interest and in
    the face of bias or a reasonable apprehension of bias; and (2) the Boards
    decision was unreasonable.

[4]

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

Background

[5]

The appellant suffers from schizoaffective
    disorder, bipolar type, and has a history of drug abuse, supervision failure
    and medication non-compliance.

[6]

The appellant was originally charged in
    2003 with uttering threats and criminal harassment of her ex-boyfriend, and
    with breach of recognizance. She was admitted to the Centre for Addiction and
    Mental Health (CAMH) to be assessed for criminal responsibility on those
    charges. She became infatuated with, and developed erotomanic delusions about, Dr.
    Colleton, the CAMH staff psychiatrist who conducted her assessment. She began
    to send him letters and repeatedly called him on the telephone.

[7]

As a result, the appellant was charged
    with criminal harassment and with making harassing telephone calls.

[8]

On November 14, 2003, she was convicted
    of the charges relating to her ex-boyfriend.

[9]

Despite recognizances containing conditions
    that she abstain from direct or indirect communication with Dr. Colleton, the
    appellant persisted with her communications and was again charged.

[10]

On July 14, 2005, the appellant was
    found not criminally responsible on account of mental disorder (NCR) of four
    charges of making harassing phone calls to Dr. Colleton, three charges of
    failure to comply with a recognizance, and two charges of failure to comply
    with probation. She received a conditional discharge and was required to report
    to the Whitby Mental Health Centre.

[11]

The appellants attempts to communicate
    with Dr. Colleton continued. She was again charged and again found NCR in 2006.
    Since that time, the appellant has remained under the jurisdiction of the Board.
    She has been detained on general and secure forensic units in Whitby, Kingston
    and Hamilton with varying levels of privileges, which has included living in
    the community in supervised accommodation.

[12]

The appellant appealed the Boards
    February 11, 2014 disposition to this court. On January 16, 2015, this court
    rejected her appeal but, in its endorsement, indicated that consideration ought
    to be given to commencing the appellants integration into the community. This
    was due to the length of time that had elapsed since her index offences and the
    progress that had been made in her attitude and condition.

[13]

On January 19, 2015, the appellant had her
    next annual review before the Board. On January 21, 2015, the Board ordered
    that she was to be detained in the general forensic unit of the Hospital, with
    conditions that allowed her to live in the Hamilton community in accommodations
    approved by the Hospital.

[14]

In May 2015, the Board approved a
    request for an early review of the appellants disposition due to the
    appellants deterioration. The Hospital report described 180 aggressive
    incidents that occurred between January and May 2015. These included the destruction
    of property, as well as verbally and physically threatening and assaultive
    behaviour towards others. She also continued to have delusions relating to Dr.
    Colleton. In violation of the terms of her disposition, the appellant had
    attempted to contact him on many occasions.

Board Hearing

[15]

The Hospital, supported by the Crown,
    sought an order placing the appellant in a secure forensic unit. They submitted
    that such a disposition was necessary and appropriate to manage the appellants
    risk.

[16]

At the commencement of the hearing, the
    Chairperson raised a preliminary matter. He advised the parties that Dr. Darby,
    a member of the panel, works at CAMH in Toronto and had been involved in the
    recommendation involving the appellants transfer from CAMH to Whitby. He
    explained that Dr. Darby dealt with the appellants case as a psychiatrist at
    CAMH because Dr. Colleton was the victim.

[17]

The Chairperson asked whether the
    appellant objected to Dr. Darbys continuing as a member of the panel. The
    appellant initially objected. Then the appellants counsel asked for time to
    discuss the matter whereupon he and the appellant retired from the hearing
    room. On their return, counsel advised that the appellant was prepared to
    proceed with Dr. Darby present as a member of the panel. Counsel for the
    Hospital and the Crown took the same position. No one mentioned any actual or potential
    conflict with Dr. P. N. Wright, a psychologist and the second panel member now alleged
    to be in a conflict of interest.

[18]

The Board proceeded with the hearing. It
    subsequently found that there was a foreseeable and substantial likelihood
    that Ms. Tolias would cause serious psychological harm to members of the public
    from conduct that is criminal in nature if not under the jurisdiction of the
    Board. The Board concluded that the appellant continued to pose a significant
    threat to the safety of the public and the necessary and appropriate
    disposition to safely manage that risk was to order her detention at the
    Hospitals secure forensic unit on terms and conditions. These included
    hospital and grounds privileges, accompanied by staff or a person approved by
    the Person in Charge. The disposition reflected the unanimous view of panel
    members.

[19]

In reaching its conclusion, the Board
    relied on the evidence of Dr. Nagari, the appellants psychiatrist. He had
    opined that the appellant presented an ongoing risk of psychological harm to
    Dr. Colleton and significant risk of harm to the public. During the reporting
    period, the appellant had contacted Dr. Colleton on multiple occasions, had
    tried to leave the hospital without permission, had refused her medication
    numerous times, and her conduct had been threatening and assaultive.

Issues on Appeal

[20]

Before us, the appellant advances two
    grounds of appeal. First, she argues that the Board breached the rules of
    natural justice. Second, she argues that the Boards decision was unreasonable.

Analysis

(1)

Natural Justice

[21]

The appellant submits that the Board
    breached the rules of natural justice by conducting a hearing with two panel
    members who had a conflict of interest and by failing to make complete
    disclosure of said conflicts. She asserts that there was bias and a reasonable
    apprehension of bias with respect to both Dr. Darby and Dr. Wright.

[22]

The appellant argues that the two panel
    members were personal colleagues of Dr. Colleton, the victim of her index
    offences. Moreover, Dr. Darby was involved in her transfer from CAMH to Whitby.

[23]

The appellant provided no details on
    Dr. Wrights role but asked this court to infer that Dr. Wright had had
    conversations about her with Dr. Colleton, given that they were colleagues on a
    small team of mental healthcare professionals at CAMH.  I would note that the
    record does refer to Dr. L. Wright, a forensic psychiatrist who conducted the
    appellants first assessment.  However, Dr. P. N. Wright who is a psychologist
    and sat on the panel is a different Dr. Wright.

[24]

There is a legal presumption that Board
    members are impartial, and as a result, there is a high threshold to
    successfully challenge a decision based on bias or reasonable apprehension of
    bias: see
Ontario (Commissioner, Provincial Police) v. MacDonald
, 2009 ONCA 805, 255 O.A.C. 376, at para. 44.

[25]

Full disclosure was made to the
    appellant and her counsel of the circumstances relating to Dr. Darby. The
    Chairperson asked whether there was any objection and, as previously mentioned,
    the appellant, represented by counsel, advised that she was prepared to proceed
    with Dr. Darby as a panel member. No fresh evidence was proffered to suggest
    that full disclosure had not been made or that served to rebut the presumption
    of impartiality.

[26]

Arguments on bias or a reasonable
    apprehension of bias relating to Dr. Wright were only raised in oral
    submissions. The court was not directed to any evidence in the record regarding
    his alleged bias or even his place of work, and again, no fresh evidence was
    submitted. Even if he worked or works as a psychologist at CAMH, which was not
    established, this fact alone is insufficient to anchor the appellants claim
    that there was a breach of natural justice. The dearth of evidence causes me to
    conclude that the presumption of impartiality has not been rebutted.

(2)

Reasonableness of the Boards decision

[27]

Second, the appellant submits that the
    Boards decision was not reasonable. She states that the Boards reasons do not
    support the disposition and the disposition was not supported by the evidence. She
    contends that there was no real risk of physical or psychological harm.

[28]

I disagree.

[29]

The appellants mental state and
    behaviour had significantly deteriorated since January 2015. The Boards
    reasons were responsive to the issues before it and its disposition was
    reasonable and supported by the evidence, including that of Dr. Nagari, the
    appellants attending psychiatrist.

[30]

The appellant argues that the Board
    improperly disregarded this courts comments made when reviewing the appellants
    February 11, 2014 disposition. I do not accept this submission. The comments
    were made at a different time and in a different context. Following that appeal
    and in its next disposition, the Board commenced the integration of the
    appellant into the community. There ensued a well-documented deterioration in
    the appellant's mental state and behaviour, which fully justified the Boards
    subsequent disposition.

[31]

I see no basis on which to interfere.

Disposition

[32]

For these reasons, I would dismiss the
    appeal.

Released:

GE                                          S.E.
    Pepall J.A.

JUN 13 2016                           I agree Gloria
    Epstein J.A.

I
    agree K. van Rensburg J.A.


