



COURT OF APPEAL FOR ONTARIO

CITATION: S.S. v. Kantor, 2017 ONCA 828

DATE: 20171031

DOCKET: C61933

Weiler, van Rensburg and Huscroft JJ.A.

BETWEEN

S.S.

Applicant (Respondent)

and

Dr. David Kantor

Respondent (Appellant)

Gillian T. Hnatiw, for the appellant

Joan C. Manafa, for the respondent

Kendra A. Naidoo and Michele M. Warner, for the
    intervener, Ontarios Specialty Mental Health Hospitals

Heard: June 8, 2017

On appeal from the order of Justice Mario D. Faieta of
    the Superior Court of Justice, dated March 4, 2016, with reasons reported at
    2016 ONSC 1444.

Huscroft J.A.:

A.

Overview

[1]

This appeal concerns the validity of a Community
    Treatment Order (CTO) made under the
Mental Health Act
, R.S.O. 1990, c. M.7 (
MHA
).

[2]

A CTO provides a person who has a serious mental
    disorder with treatment or care and supervision in the community, rather than
    in the confines of a psychiatric facility:
MHA
s. 33(3).
The CTO is based on a Community Treatment Plan (CTP), which must
    be entered into within 72 hours of an examination by the issuing physician. The
    question in this case is whether all participants in a CTP must sign it within
    72 hours of the examination in order for the CTO to be valid.

[3]

The Consent and Capacity Board answered that
    question in the negative. According to the Board, it was sufficient that Dr.
    Richard Gorman, the issuing physician who examined S.S., signed the CTP within
    72 hours of conducting the examination, even though some of the other
    participants in the plan, including the monitoring physician, Dr. Kantor,
    signed more than 72 hours later. The appeal judge allowed the appeal and set
    aside the CTO, holding that all participants in the CTP were required to sign
    it within the 72-hour period in order for the CTO to be valid.

[4]

In my view, the appeal judge erred in doing so. I
    would allow the appeal for the reasons that follow.

B.

Background

[5]

S.S. is a 63 year-old woman diagnosed with paranoid
    schizophrenia. She has been hospitalized or received hospital treatment on
    several occasions since 2007. Dr. Kantor is the consulting psychiatrist at
    Reconnect Mental Health Services, where S.S. is a client.

[6]

S.S. was hospitalized at Toronto East General
    Hospital from April 7 to April 23, 2015, where she was found incapable with
    respect to psychiatric treatment with anti-psychotic medication and a CTP.

[7]

On April 16, 2015, Dr. Gorman and the Community
    Mental Health Services Coordinator signed a CTP governing S.S.s care. Dr.
    Kantor signed the CTP on April 20, 2015, the substitute decision-maker signed
    April 21, 2015, and Reconnect Mental Health Services signed April 22, 2015. On
    April 23, 2015, Dr. Gorman issued a CTO giving effect to the CTP. S.S. sought
    review of the finding of incapacity and challenged the issuance of the CTO
    before the Board.

[8]

The Board found that S.S. was incapable of
    consenting both to psychiatric treatment with anti-psychotic medication and to the
    CTP. The Boards decision on this point was confirmed by the appeal judge and initially
    was not contested on this appeal. Subsequently, counsel for S.S. sought leave
    to raise several additional issues, including whether the incapacity finding was
    reasonable.

C.

The legislation

[9]

As noted above, a CTO incorporates the terms of
    a CTP. The issuance of a CTP is governed by the
MHA
, which provides:

33.1 (1)
A physician may issue or
    renew a community treatment order with respect to a person for a purpose
    described in subsection (3) if the criteria set out in subsection (4) are
    met.



(4)
A physician may issue or renew
    a community treatment order under this section if,



(b) the person or his or her substitute decision-maker, the
    physician who is considering issuing or renewing the community treatment order
    and any other health practitioner or person involved in the persons treatment
    or care and supervision have developed a community treatment plan for the
    person;

(c) within the 72-hour period before entering into the
    community treatment plan, the physician has examined the person and is of the
    opinion, based on the examination and any other relevant facts communicated to
    the physician, that,

(i) the person is suffering from mental disorder such that
    he or she needs continuing treatment or care and continuing supervision while
    living in the community,

(ii) the person meets the criteria for the completion of an
    application for psychiatric assessment under subsection 15 (1) or (1.1) where
    the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or
    care and continuing supervision while living in the community, he or she is
    likely, because of mental disorder, to cause serious bodily harm to himself or
    herself or to another person or to suffer substantial mental or physical
    deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the community
    treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the
    terms of the community treatment order are available in the community;

(d) the physician has consulted with the health practitioners
    or other persons proposed to be named in the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that
    the person subject to the order and his or her substitute decision-maker, if
    any, have consulted with a rights adviser and have been advised of their legal
    rights; and

(f) the person or his or her substitute decision-maker consents
    to the community treatment plan in accordance with the rules for consent under
    the
Health Care Consent Act, 1996.,
2000, c. 9, s. 15
.

D.

The Boards decision

[10]

The Board found S.S. could understand the
    information relevant to making a decision about her psychiatric treatment.
    However, because of her lack of insight into her mental state and corresponding
    need for treatment, S.S. was unable to appreciate the consequences of a
    treatment decision. The Board therefore found S.S. incapable of consenting to
    treatment with anti-psychotic medication and incapable of consenting to a CTP.

[11]

The Board then considered the validity of the CTO.
    It reviewed each of the criteria governing the issuance of a CTO and confirmed
    that they were met. Concerning the 72-hour period, the Board stated, at p. 18:

Dr. Kantors evidence was that within the
    seventy-two hour period before entering into the Community Treatment Plan on
    April 16, 2015, in fact the same day as Dr. Gorman entered into the Plan, he
    examined SS and concluded that she suffered from mental disorder requiring
    continuing treatment and continuing supervision while living in the community.

[12]

The Board accepted Dr. Kantors evidence and
    found that the requirements of s. 33.1(4)(c) were met.

E.

The appeal judges decision

[13]

The appeal judge upheld the finding of S.S.s
    incapacity on the basis that it was reasonable. However, he applied a
    correctness test to the Boards interpretation of the
MHA
and concluded that the Board erred in interpreting s. 33.1(4).
    According to the appeal judge, the
MHA
requires not only the examining physician, but also all persons named in the
    CTP to agree in writing to the CTP within 72 hours of the medical examination.

[14]

Applying this requirement, the appeal judge
    found that the Public Guardian and Trustee (the substitute decision-maker for
    the appellant), Dr. Kantor, and Reconnect Mental Health Services did not sign the
    CTP until more than 72 hours had passed following S.S.s medical examination.
    As a result, he concluded that the CTP did not meet the requirements of s.
    33.1(4), allowed the appeal, and set aside the CTO.

F.

Issues on appeal

[15]

The following issues are raised:

1.

What standard of review applies to the Boards decision?

2.

How does that standard apply in this case?

[16]

S.S. brought a motion seeking to raise several
    additional issues.

[17]

The intervener, a coalition of three psychiatric
    hospitals that run or participate in the CTP programs, sought permission to
    file fresh evidence on the practice of management, coordination, and
    preparation of CTOs at its member hospitals. This was opposed by S.S. on the
    basis that the evidence did not satisfy the requirements set out in
Palmer
    v. The Queen
, [1980] 1 S.C.R. 759
. The evidence was addressed
    at the hearing of the appeal and the question of admissibility was left to be
    determined.

G.

Discussion

(1)

The standard of review

[18]

It is well established that decisions of the
    Board applying the law to the evidence involve mixed questions of fact and law,
    which are subject to review on the reasonableness standard: see e.g.
Starson
    v. Swayze
, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 84;
M.M. v. de Souza
, 2016 ONCA 155, at para. 12;
    and
Giecewicz v. Hastings
,
2007 ONCA
    890, 288 D.L.R. (4th) 587, at para. 13, leave to appeal refused, [2008]
    S.C.C.A. No. 97.

[19]

The Supreme Court held in
Starson
that the Boards interpretation of the legal standard governing
    capacity under the
Health Care Consent Act
, 1996, 2000, c. 9, s. 15, is
    a question of law to which the correctness standard applies. The majority of
    the court stated, at para. 110:

The interpretation of the legal standard for
    capacity is a question of law: see
Southam
,
supra
, at para. 35. No deference is owed to the Board on this issue. As
    noted above, the broad statutory right of appeal and adjudicative nature of the
    proceedings militate against deference. Furthermore, courts clearly have
    relative expertise on general questions of statutory interpretation. One of the
    stated purposes of the Act is to provide for the consistent application of its
    rules: s. 1. Consistency requires courts to ensure that individual panels do
    not diverge in their interpretation of statutory provisions. Finally, this
    question of law has broad application and need not be resolved anew on each
    appeal. A correctness standard of review on this issue will not impede the
    expeditious treatment of patients.

[20]

Starson
has been read as establishing a
    standard of correctness not only for interpretation of the legal standard for
    capacity, but for questions of law generally: see e.g.,
Ness v. Geagea
, 2015 ONSC 623, at para. 17;
L.C. v. Dr. Duff
, 2013 ONSC 2974, at para. 9.

[21]

The appellant submits that
    the reasonableness standard applies to the Boards interpretation of the
MHA
, while the respondent submits
that the Boards interpretation of the
MHA
is subject to review for correctness.

[22]

The
Supreme Courts approach to error of law review has evolved
    considerably since
Starson
: see, e.g.,
Edmonton
    (City) v. Edmonton East (Capilano) Shopping Centres Ltd.
,
    2016 SCC 47, [2016] 2 S.C.R. 293, at para. 22;
Mouvement laïque
    québécois v. Saguenay (City)
, 2015 SCC 16, [2015] 2
    S.C.R. 3, at para. 46;
Canadian National Railway Co. v. Canada
    (Attorney General)
, 2014 SCC 40, [2014] 2 S.C.R. 135, at
    para. 55; and
McLean v. British Columbia (Securities Commission)
, 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 21.

[23]

In light of these developments, it would not be
    inappropriate for this court to revisit the standard of review. However, in the
    circumstances of this case I would apply the correctness standard and leave
    future development of the law for a case in which the standard of review argument
    can be canvassed more fully.

[24]

I note that the outcome in this case does not
    hinge on the standard of review in any event. In my view, the Boards decision
    is reasonable, but more than that it is correct.

(2)

Is
the Boards interpretation of s.
    33.1(4) of the
MHA
correct?

[25]

The Board was charged with interpreting the
    criteria that govern the exercise of the discretion to issue a CTO. Section 33.1(4)
    focuses on the role and responsibilities of the physician in issuing a CTO. I
    set out the key portions of the relevant provision again for convenience:

33.1 (1)
A physician may issue or
    renew a community treatment order with respect to a person for a purpose
    described in subsection (3) if the criteria set out in subsection (4) are
    met.



(4)
A physician may issue or renew
    a community treatment order under this section if,



(c) within the 72-hour period before entering into the
    community treatment plan, the physician has examined the person and is of the
    opinion, based on the examination and any other relevant facts communicated to
    the physician that

[26]

These provisions refer to the responsibilities
    of the physician issuing or renewing a CTO. Different statutory language is used
    in regard to the obligations of the other treatment/care providers named in the
    CTP, who are required only to indicate their agreement to the plan following
    consultation:
MHA
, ss. 33.1(4)(d) and 33.5(3).

[27]

Before the Board, Dr. Kantor took the position
    that the date on which any person other than the examining physician signed the
    CTP was irrelevant. The Board confirmed this position in holding that it was
    sufficient that Dr. Gorman, who examined S.S., signed the CTP within the
    72-hour window.

[28]

In my view, the Boards interpretation is
    correct.

[29]

The focus on the responsibilities of the issuing
    or renewing physician confirms the purpose of s. 33.1(4). The 72-hour
    requirement is designed to ensure that the physicians medical findings are fresh
    when the CTP is entered into
by the physician
. Not only does a
    requirement that other participants in the CTP sign it within 72 hours not
    further this purpose, it may well frustrate it.

[30]

The appeal judge found that the CTP was
    analogous to a contract. Applying contractual principles, he held that a
    physician did not enter into a CTP unless the other persons named in the plan
    agreed to that plan, and the requirement that those persons indicate their
    agreement with the plan means that they must all sign the CTP within 72 hours
    of the physicians examination of the person for whom the plan was developed.

[31]

But service providers who indicate agreement
    with a CTP are not parties to the CTP in a contractual sense. They are simply
    indicating that they agree to provide treatment or care under a CTP. They are
    not required to do so within a limited period of time: s. 33.5(3). Again, the 72-hour
    requirement relates to entry into the CTP by the physician.

[32]

Courts should be wary of falling back on
    familiar common law principles when interpreting complex administrative
    schemes, lest the administrative scheme be undermined. In this case, the appeal
    judges decision overturned an interpretation it appears the Board has long followed.
    The appeal judges decision would formalize the CTP, resulting in logistical
    difficulties and undermining patient care without any countervailing benefit.
    These difficulties led another appeal judge to reach the opposite conclusion, approving
    the Boards interpretation of s. 33.1(4) and upholding the CTO in
Paspalovski
    v. Dr. Agrawal
, 2016 ONSC 4805, at para. 52.

[33]

The fresh evidence proffered by the intervener addresses this point.
    Given my conclusion that the Boards decision was correct, it is not necessary
    to admit that evidence in order to resolve this appeal.

(3)

Additional issues

[34]

S.S. raised several additional issues in her
    factum, at the oral hearing, and in a June 5 motion for leave to raise
    additional issues. They can be grouped into two categories.

[35]

First, she argues the CTO is invalid because certain
    of the criteria in s. 33.1(4), other than the 72-hour requirement, were not
    met. One prong of this argument appears to challenge the Boards incapacity finding.
    Second, she argues that her hearing before the Board was procedurally unfair.

[36]

None of the additional issues have merit.

[37]

Dealing first with the requirements of s. 33.1(4),
    S.S. argues that Dr. Gorman did not properly examine her as required by s.
    33.1(4)(c); that the information grounding his incapacity finding was outdated;
    that he did not consult with other signatories to the CTP as required by s.
    33.1(4)(d); that she could not comply with the CTO; and that the Public
    Guardian and Trustees consent given on her behalf was invalid.

[38]

The challenge to the Boards finding that S.S.
    is incapable of consenting to anti-psychotic treatment and to a CTP  a finding
    the appeal judge upheld  is properly the subject of a cross-appeal: see r.
    61.07. No cross-appeal was brought. Nor is this an appropriate case to grant
    leave to raise issues not stated in a notice of cross-appeal based on r.
    61.07(3). S.S. filed her motion for leave to raise additional issues only a few
    days before the hearing; the appellant did not have the opportunity to
    adequately respond to the issues raised and there is no material before the
    court justifying an extension of time to cross-appeal: see
Laudon v. Roberts
,
    2009 ONCA 383, 308 D.L.R. (4th) 422, at para. 59;
Mississauga (City) v.
    Vandenbergh
(1999), 122 O.A.C. 381 (C.A.), at para. 8.

[39]

The remainder of S.S.s attacks on the CTOs
    validity must also fail. The Boards finding that the s. 33.1(4) requirements
    were met is a question of mixed fact and law, reviewed for reasonableness. The
    Board carefully considered the evidence before it and found that each of the
    criteria in s. 33.1(4) was met. The record amply supports the Boards findings.
    There is no basis to conclude that the Boards conclusion was unreasonable.

[40]

S.S. argues that the Board hearing was
    procedurally unfair because she was given insufficient notice of the case she
    had to meet. Her notice argument has two prongs. First, the documentary
    evidence the Board relied on  namely, the CTO  was vague and contained
    errors. Second, she argues that certain documents were provided to her for the
    first time at the hearing itself, giving her and her counsel insufficient time to
    review them.

[41]

There is no merit to these arguments. S.S.
    received notice of the Board hearing. The hearing was adjourned twice,
    including an opposed adjournment to give S.S. time to retain new counsel after
    she discharged her first lawyer. The CTO was neither impermissibly vague nor misleading.

[42]

Finally, although S.S. only received two of her hospital
    discharge summaries at the Board hearing, she received a summary of the pertinent
    portions of those documents prior to the hearing. She was aware of the CTO and
    the grounds on which it was made and was properly equipped to challenge its
    validity.

H.

Conclusion

[43]

I would dismiss the fresh evidence application.

[44]

I would allow the appeal.

[45]

Each party should pay its own costs.

Released: October 31, 2017 (K.M.W.)

Grant Huscroft J.A.

I agree. K.M. Weiler J.A.

I agree. K. van Rensburg J.A.


