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Procedural Fairness at the Consent and Capacity Board

Fairness in The Exercise of Statutory Powers 

In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 , the majority of the SCC held that the duty of procedural fairness in administrative law is “eminently variable”, inherently flexible, and context-specific.[1] Where an administrative decision gives rise to a duty of procedural fairness, the specific requirements of that duty are determined with reference to all of the circumstances.[2]  In Baker v. Canada, 1999 CanLII 699 (SCC) (“Baker”), the SCC set out a non-exhaustive list of factors that inform the content of this duty, including:

(1) the nature of the decision being made and the process followed in making it;

(2) the nature of the statutory scheme;

(3) the importance of the decision to the individual or individuals affected;

(4) the legitimate expectations of the person challenging the decision; and

(5) the choices of procedure made by the administrative decision maker itself.[3]

In a powerful decision in [K.] v. Weinroth, 2022 ONSC 2748, Justice Myers granted an appeal from the Consent and Capacity Board (“CCB” or the “Board”) by an applicant on the basis of procedural fairness in the exercise of statutory power by the physician.[4]  Justice Myers held:

There cannot be indifference to patient’s autonomybodily integrity, and legal rights. From start to finish the health care team ignored [the applicant’s] rights. The mandatory processes of the statute and the constitutional and administrative law requirements of natural justice and procedural fairness cannot be ignored or swept away by a discretionary decision that the result was not egregious. The process for an assessment of a patient’s capacity must be fair.[5]

Justice Myers held that a proceeding is either fair or it is not, there is no other standard of review.[6]

In applying K. v. Weinroth, a panel of the CCB in MC (Re), 2022 CanLII 64964, held that Justice Myers added a fourth ground to be considered on a review of a Form 3, Certificate of Admission (as an involuntary patient): fairness. In GL (Re), 2022 CanLII 65040, a panel of the CCB held that following Justice Myers’ decision, there is a third way of challenging a CTO: whether it was unfair.

There is no question that CCB hearings themselves ought to be procedurally fair. These recent decisions demonstrate that an exercise of statutory power under the Mental Health Act, RSO 1990, c M.7 (“MHA”) by physicians gives rise to a duty of procedural fairness. As such, the CCB can consider a procedural fairness criterion on review which can be described as: fairness in the statutory process.

This fairness criterion can consider a patient’s autonomybodily integrity, and legal rights. If the manner which state power was exercised by a physician was not fair, a panel can consider this on a preliminary basis, in accordance with Charter values and principles of natural justice, without recourse to the exercise of discretionary powers under the MHA after a full hearing on the substantive issues (such as s. 39.1 (7) for a CTO or s. 41(2) for a Form 3). Procedurally, MHA forms can be challenged on the grounds of fairness in the statutory process on a preliminary basis following notice of a motion as required by Rule 18 of the CCB Rules of Practice.

The Decision in K. v. Weinroth


The applicant in K. v. Weinroth  was on a Community Treatment Order (CTO) that had expired “without being renewed in advance due to a SNAFU in the health care team administration”.[7] Without being told that the CTO had lapsed or that the applicant was being subject to a new capacity assessment, the applicant was brought in for an assessment at a doctor’s appointment.[8] The applicant was not actually required to attend this appointment due to the expiry of the CTO.[9]

The physician conducted an assessment, made a finding that the applicant lacked capacity, and prepared a new CTO.[10]  The physician also did not give the applicant the new CTO or any of the forms required by the statutory scheme under the MHA.[11] At the CCB hearing, the applicant gave evidence that they did not want to remain on the CTO and they would not have attended the appointment if they knew they didn’t have to.[12]

Decision of the CCB Panel

The majority of the three-member CCB panel upheld the physician’s findings of incapacity and found that the procedural failures did not prejudice the applicant.[13] The presiding lawyer member agreed that the applicant lacked capacity, but dissented from the outcome, and would have refused to uphold the finding of incapacity due to the manner in which the capacity assessment had been made.[14]

The CCB panel analyzed the decision before them under s. 39.1 (7) of the MHA which  provides a residual discretion to decline to confirm a CTO even if all of the substantive criteria for its issuance have been proven.[15] The case law provides that this discretionary power is to be exercised sparingly and cautiously.[16]

The majority of the panel held that the procedural issues were not a sufficient basis to exercise discretion to refuse to confirm the CTO.[17] They held that the applicant’s decision to remain at the capacity assessment “amounted to a voluntary waiver of [their] right to due notice of the proceeding” and that once the applicant was told of the purpose of the appointment (during the appointment), they could have left.[18] The majority further held that any prejudice due to the failure to provide the required forms was mitigated by the fact that the hearing had proceeded.[19]

Justice Myers rejected this analysis and noted that “a person cannot escape the results of making a misrepresentation by saying that the victim should have known better”, and that is “doubly the case where the victim is a vulnerable person whose statutory rights have been ignored”.[20]

Justice Myers did agree with the majority that the failure to provide the applicant with the required forms caused little prejudice ahead of the scheduled hearing and that on its own, this may not have made the process unfair.[21]

The dissenting lawyer member found that in the specific circumstances, the physician had an overriding obligation to conduct a new assessment fairly and “in accordance with Charter values and the principles of natural justice”.[22] The dissenting member concluded that the “principle of fairness” required the physician to explain that the previous CTO was no longer in effect and that the applicant was under no legal obligation to attend the appointment.[23] The dissenting member found that the overall approach to the development and issuance of the new CTO was indifferent to the applicant’s involvement.[24] Citing Saunders v. Bridgepoint Hospital2005 CanLII 47735 (ON SC) (paras 106 and 118), the dissenting member noted that “the Board is obliged to consider the procedural fairness of a capacity assessment when reviewing the finding of incapacity”.[25] Quoting the Court of Appeal’s decision in Fleming v. Reid1991 CanLII 2728 (ON CA), the dissenting member further noted that “few medical procedures are more intrusive than the forcible injection of powerful mind-altering drugs which are often accompanied by severe and sometimes irreversible adverse side effects”.[26]

The surreptitious manner of the appointment, in combination with the additional failure to provide any of the required MHA forms, resulted in the dissenting member’s decision to invoke the CCB’s discretionary powers and revoke the CTO.[27]

Decision on Appeal

Justice Myers began by noting that “procedural safeguards are really not relevant to the substantive issues” (even if a patient was subject to a horribly unfair process, they might still need treatment)[28] but fair process matters:

The government or well-meaning doctors cannot just sweep people up off the street and start injecting them with antipsychotic drugs against their will. That is an extreme example to make a point and is not nearly the case here. The point is that people are entitled to notice and a fair process to ensure that their rights of autonomy and security of the person are protected from both government actors and doctors whether well-meaning or ill-motivated.[29] [emphasis added]

Justice Myers held that a fair process is necessary to ensuring that government power is exercised in a fair, reasonable, and lawful manner.[30] Justice Myers further noted that “fairness in legal proceedings is especially important when dealing with vulnerable people who are in need of protection”.[31] The consideration of procedural fairness as an exercise of a discretionary power was also found to be an error of law:

… if this order is allowed to stand, the procedural rights of patients in [the applicant’s] circumstances will be diluted or dilutable to meaninglessness. The board treated the question of procedural fairness as one to be considered under its general discretion to decline to make an order. It thereby converted its obligation to ensure doctors provide a fair process into a discretionary decision ostensibly subject to the board’s own weighing of factors and judgment and then deference from this court. This was an error of law.[32]

Justice Myers noted that setting aside the CTO might not be the best outcome for the applicant’s health “but it is necessary to protect all of us and to maintain the rule of law”.[33] It was a necessary outcome “if we are to respect peoples’ rights to fair treatment before their substantive rights are subject to adjudication and restriction”.[34]

Justice Myers noted that not every capacity assessment will require a physician to tell a patient anything in particular in advance, “there are several applicable statutes and each says what it says”.[35] In this specific case, the assessment “took on a surreptitious quality that was not fair” to the applicant.[36] The systemic failure to respect procedural obligations and “the specific confluence of multiple failures in this case resulted in an unfair assessment and review process”.[37] However, not every possible procedural error leads automatically to a setting aside of an order under the statute and “the decision to leave a patient who lacks capacity untreated is not one that should be reached readily”.[38]

Justice Myers noted that “people are entitled to notice so that they can prepare for and seek advice on their rights before attending a hearing or assessment that may have legal consequences”.[39] The requirement for notice of upcoming legal proceedings was recognized as “the most basic element of natural justice and procedural fairness”.[40] This was not an issue for discretion and the “surreptitiousness of the process, whether intentional, circumstantial, or caused by systemic failure” left the applicant misled and uninformed.[41]

Although Justice Myers would have characterized the circumstances as egregious, egregiousness is not the test at law and procedural fairness is not just a discretionary matter under s. 39.1 (7) of the MHA, “if the assessment process was procedurally unfair, then it cannot stand”.[42]

Citing Baker, Justice Myers noted that procedural fairness is contextual, not every possible procedural error leads automatically to setting aside an order under the MHA.[43] On the particular facts of the case, the complete failure of the physician and the medical team to respect the applicant’s procedural rights, led to an unfair process, and breach of the principles of natural justice.[44]

Justice Myers would not have readily invaded the doctor-patient relationship but here the physician was asserting the power of the state under a statute to compel an applicant to be injected with a drug against their will.[45] To do that, the physician and the medical team had to be “scrupulously fair” to ensure that the applicant and “all patients know the nature of the decision to be made in advance so that they can understand and assert their rights if so advised”.[46]

Fairness in Involuntary Detentions

In MC (Re), 2022 CanLII 64964 (ON CCB), a panel of the CCB revoked a Form 3 on a preliminary basis on the grounds of fairness. The physician had allowed a Form 3 to expire solely because they did not have time to prepare for a scheduled CCB hearing. The physician did not tell the applicant that their lawful detention had ended but the next day, the physician issued a new Form 1 Application for Psychiatric Assessment, leading to a new Form 3, and a new CCB hearing at a later date.

By using the statutory regime in this manner for the purpose of securing an adjournment, the panel held: “We cannot overstate how offended we are by what [the physician] did”.

The panel noted that a core ethical principle of the medical profession is respect for the dignity and autonomy of patients and the law “holds physicians to the highest standard of honourable dealings with patients”; it is a fiduciary relationship.

The panel held that the applicant was entitled to a remedy and the only one available was a revocation of the Form 3. Until recently, the panel noted that there were 3 reasons available to rescind a Form 3 or a Form 4:

  • the prerequisites for involuntary detention were not proven at a hearing.
  • there was a fatal procedural defect, such as failure to ensure the patient received prompt rights advice.
  • the exercise of the Board’s residual discretion to revoke a Form.

Following Justice Myers’ decision in K. v. Weinroth, the panel considered a fourth fairness justification which can be described as:

  • Fairness in the statutory process.

The panel further noted that the exercise of discretion (s. 41(2) in the case of a Form 3) “required hearing all the evidence, deciding if the prerequisites were met and if so, deciding whether the delict justified revocation even though the prerequisites were met”. However, the physician had not respected the applicant’s “personal integrity, legal rights and autonomy as an adult in Canadian society”. As such, without addressing the substantive criteria or invoking discretion, the panel revoked the Form 3.

Fairness in CTOs

In GL (Re), 2022 CanLII 65040, a panel of the CCB confirmed a finding of incapacity and a CTO but considered an additional criterion for review: fairness.

The panel noted that on review of a CTO, the Board’s job pursuant to s. 39.1(6) is to review whether or not the criteria for issuing or renewing the community treatment order set out in subsection 33.1 (4) are met at the time of the hearing of the application.

Pursuant to s. 39.1(7), the Board may confirm the issuance or renewal of the community treatment order if it determines that the criteria mentioned in subsection (6) are met at the time of the hearing, but, if the Board determines that those criteria are not met, it shall revoke the CTO.

The panel noted:

Exercising discretion requires, first, a determination of whether the s. 33.1(4) criteria are met, then an examination of each preliminary challenge (and when appropriate, to consider them collectively even if individually they would not justify an exercise of discretion), to consider the extent of overbreadth, vagueness or other fault and balance that against depriving the Applicant of the benefits of the CTO.

In applying Justice Myers’ decision in K. v. Weinroth, the panel noted that there are now three ways to challenge a CTO, whether:

  • The s. 33.1(4) criteria were not met;
  • Something else about the CTO, such as the “overbreadth” of the community treatment plan (“CTP”), justified exercising discretion to revoke the CTP; or
  • It was unfair.

This additional third criteria can similarly be described as fairness in the statutory process.

Ultimately, the panel in GL (Re) heard the evidence, considered the preliminary challenges, and “concluded that the s. 33.1(4) criteria were met, saw no flaw in the CTP meriting exercising discretion to revoke the CTO and saw nothing unfair about the process or the CTP”.


The exercise of state power by physicians gives rise to a duty of procedural fairness and this fairness in the statutory process can be considered by the CCB on review and on a preliminary basis. Although physicians are often not represented by legal counsel before the CCB and any unfairness may be inadvertent rather than intended, the exercise of the statutory powers set out by the MHA must be fair. The rule of law demands it.

[1] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 77 (Vavilov).

[2] Vavilov at para 77.

[3] Vavilov at para 77; Baker v. Canada, 1999 CanLII 699 (SCC) at paras 23-27.

[4] [K.] v. Weinroth, 2022 ONSC 2748 at paras 15 and 39 (K. v. Weinroth).

[5] K. v. Weinroth at para 40.

[6] K. v. Weinroth at para 11

[7] K. v. Weinroth at para 1.

[8] K. v. Weinroth at paras 1-2.

[9] K. v. Weinroth at para 2.

[10] K. v. Weinroth at para 3.

[11] K. v. Weinroth at paras 3 and 17

[12] K. v. Weinroth at para 16.

[13] K. v. Weinroth at para 4.

[14] K. v. Weinroth at para 5.

[15] K. v. Weinroth at para 19.

[16] K. v. Weinroth at para 19.

[17] K. v. Weinroth at para 20.

[18] K. v. Weinroth at para 21.

[19] K. v. Weinroth at para 22.

[20] K. v. Weinroth at para 27.

[21] K. v. Weinroth at para 30.

[22] K. v. Weinroth at para 23.

[23] K. v. Weinroth at para 23.

[24] K. v. Weinroth at para 23.

[25] K. v. Weinroth at para 23.

[26] K. v. Weinroth at para 23.

[27] K. v. Weinroth at para 23.

[28] K. v. Weinroth at para 6.

[29] K. v. Weinroth at para 7.

[30] K. v. Weinroth at para 8.

[31] K. v. Weinroth at para 9.

[32] K. v. Weinroth at para 10.

[33] K. v. Weinroth at para 13.

[34] K. v. Weinroth at para 13.

[35] K. v. Weinroth at para 26.

[36] K. v. Weinroth at para 26.

[37] K. v. Weinroth at para 14.

[38] K. v. Weinroth at para 36.

[39] K. v. Weinroth at para 33.

[40] K. v. Weinroth at para 34.

[41] K. v. Weinroth at para 34.

[42] K. v. Weinroth at paras 34-35.

[43] K. v. Weinroth at paras 36-37.

[44] K. v. Weinroth at para 39.

[45] K. v. Weinroth at para 38.

[46] K. v. Weinroth at para 38.

This article is intended for the purposes of providing information only and is to be used only for the purposes of guidance, is not intended to be relied upon as the giving of legal advice, and does not purport to be exhaustive on the topic.

Prior to joining Whaley Estate Litigation Partners, Nima Hojjati worked on the statutory appeal in K. v. Weinroth, 2022 ONSC 2748, with Joanna Weiss, counsel for the appellant.

The reasons in MC (Re), 2022 CanLII 64964, and GL (Re), 2022 CanLII 65040, were written by Mark Handelman, Senior Lawyer Member of the CCB and Firm Counsel at Whaley Estate Litigation Partners.

All comments are restricted to the public reporting of the decisions and their contents.

August 2022


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