Library:
ORB Must Address Privileges Pending Transfer
Published in the March 2010 issue of Litigation Notes - View Article
The Ontario Court of Appeal finds that the Ontario Review Board erred in ordering the transfer of an individual from one psychiatric facility to another, without specifying the privileges to which he should be entitled while awaiting transfer.
Isaac Bon Hiller sustained a traumatic brain injury as a result of a serious motor vehicle accident. Due to this brain injury he was declared “to be incapable of managing his financial and legal affairs” by a physician in British Columbia. The Public Guardian and Trustee (“PGT”) of British Columbia became the committee of the estate of Mr. Bon Hillier.
In 2008 Mr. Bon Hillier moved to Ontario. Shortly thereafter the B.C. PGT requested that the respondent, Ms. Milojevic, complete an assessment of Mr. Bon Hillier under section 16(1) of the Substitute Decisions Act, 1992. A formal Assessment Report was completed and Ms. Milojevic found Mr. Bon Hillier incapable of managing property and issued a certificate of incapacity to that effect. Due to this finding the Ontario PGT became the statutory guardian of property for Mr. Bon Hillier. Mr. Bon Hillier requested a review of this finding by the Consent and Capacity Board (“CCB”). The CCB confirmed the finding that Mr. Bon Hillier was incapable of managing property.
Mr. Bon Hillier filed a notice with the Superior Court appealing the decision of the CCB. As required by the HCCA the CCB filed the Record of Appeal and transcript of the hearing. Mr. Bon Hillier had 14 days after being served with the Record and transcript to serve and file a factum. Mr. Bon Hillier appeared before Brown, J. on December 16, 2009 seeking a stay of the declaration of incapacity and requesting the release of his assets by the PGT into his care and control. This was dismissed, but Brown, J. extended the time for Mr. Bon Hillier to file his factum and expressed the opinion that Mr. Bon Hillier required counsel or an amicus curiae appointed to assist the court. The Assistant Deputy Attorney General of Ontario and the PGT were directed to arrange for counsel to assist in answering questions his Honour had regarding the representation of Mr. Bon Hillier.
On December 22, 2009 a hearing was held which included counsel for the PGT and for the Attorney General of Ontario (“AG”). Submissions were made regarding the applicability of section 3 of the Substitute Decisions Act (“SDA”) , which provides that “..if the capacity of a person who does not have legal representation is in issue in a proceeding under this Act, the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person.”
It was argued that section 3 of the SDA should not be used to direct the PGT to select representation for Mr. Bon Hillier due to a possible conflict of interest by the PGT, since the appeal involved a review of the finding of incapacity which created the statutory guardianship of the PGT over Mr. Bon Hillier’s property. Justice Brown agreed and found that it would not be appropriate for him to direct the PGT to arrange for legal representation of Mr. Bon Hillier. Mr. Bon Hillier had requested a review of the finding of incapacity in order to “remove the PGT from his life” and having the PGT appoint counsel for Mr. Bon Hillier could result in Mr. Bon Hillier lacking confidence in any counsel chosen for him by the PGT.
Justice Brown went on to consider the appointment of an amicus curiae. An amicus can play many roles in a proceeding ranging “…from reminding the court of some matter of law that may have escaped its notice, through representing unrepresented interests before the court, to acting in a way that is tantamount to counsel for a person…”.
Appeals from decisions of the CCB are usually brought by patients who have been found incapable or by a physician on behalf of the patient. The Legal Aid-funded counsel who assist the patient before the CCB often assist the patient with the preparation of the Notice of Appeal, but do not secure a Legal Aid certificate for the appeal, so that the patient is unrepresented. The HCCA states that a person who is found incapable has a statutory right to appeal from the CCB and directs the court to “fix for the hearing of the appeal the earliest possible date that is compatible with its just disposition”. Appeals by a patient often flounder and stall due to the lack of representation of the patient by counsel.
Justice Brown felt that Mr. Bon Hillier was at a disadvantage without counsel or amicus to assist him with his appeal. His Honour believed that in order for Mr. Bon Hillier’s right to appeal to “possess meaning”, his position must be put before the court in a “cogent, intelligible and persuasive manner, and in a timely fashion”. Had Mr. Bon Hillier initiated an action or application to the Superior Court as a party under disability, the Rules of Civil Procedure would not permit him to do so without representation. The same rules do not apply in the case of an appeal. The court has drawn on its inherent jurisdiction to ensure that people who are unable to care for themselves are appointed an amicus to assist the court in understanding the argument put by the person and to ensure that the appeal is perfected.
With respect to appeals from the CCB, the amicus usually reviews the record of the decision being appealed, prepares a factum and presents oral argument favourable to the position and interests of the person found incapable. Sometimes the appellant chooses to adopt the argument of the amicus and other times they choose to make submissions on their own behalves. More often than not, the patient leaves it to the amicus to file written argument, but the patient is more than welcome to submit written argument if they so choose, as Mr. Bon Hillier did in this case.
Justice Brown found that although Mr. Bon Hillier chose the option of completing his own written argument, he lacked the ability to formulate and communicate arguments in a cogent, focused fashion and that an amicus was required for the appeal.
The AG was prepared to pay the amicus selected by the Court but submitted that while the Court had jurisdiction to appoint an amicus, it did not have the jurisdiction to set the rate of remuneration for the amicus. The AG argued that allowing the Court to set the rate of remuneration for the amicus “would be straying into constitutionally-forbidden territory because fixing the rate of remuneration would be tantamount to the court allocating the expenditure of public funds, a power within the exclusive preserve of the legislature…” Justice Brown did not agree. He cited caselaw in support of his ability to fix the remuneration of the amicus and also drew an analogy, as allowed by Rule 1.04 (2) of the Rules of Civil Procedure, with Rule 52.03, which authorizes a judge to appoint independent experts to inquire into and report on any questions of fact or opinion relevant to an issue in the action.
Bon Hillier v. Milojevic, 2010 ONSC 435 (CanLII)