Mercedes Perez, appointed by the Superior Court of Justice as amicus curiae, successfully raised procedural fairness issues in an appeal from a treatment incapacity decision of the Consent and Capacity Board. The decision has been published in the March 15, 2019 edition of the Ontario Reports.
The appellant suffered from schizaffective disorder and had been found incapable of making antipsychotic treatment decisions by his attending psychiatrist at the Centre for Addiction and Mental Health. The appellant challenged this incapacity finding to the Consent and Capacity Board.
The appellant had initially been represented by a lawyer at the Consent and Capacity Board hearing but eventually chose to represent himself. He was unable to raise procedural and substantive arguments, nor lead evidence or cross-examine witnesses, in any meaningful way. The Board made some attempts to assist the appellant but ultimately these efforts proved ineffective.
At the appeal hearing in Superior Court, Mercedes argued that the appellant had been denied due process and procedural fairness, noting that the Board’s guidelines and practices with respect to self-represented applicants were inadequate and that procedural fairness required the appointment of amicus curiae.
Justice Perell agreed that the appellant had been denied procedural fairness due to the Consent and Capacity Board’s failure to appoint an amicus curiae. Justice Perell specifically held that an applicant’s constitutional right to self-represent does not preclude the Board’s appointment of amicus curiae. Justice Perell also found that the Board’s policy guideline on self-represented applicants is confusing and does cannot shield the Board from its responsibility to ensure procedural fairness at all hearings.
The decision of Justice Perell in R.C. v. Dr. Klukach, 2018 ONSC 7415 (CanLII) is available at this link.