Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Mental health – Capacity – Substitute decision maker – Judicial review – Bias – Reasonable apprehension of bias – Standard of review – Reasonableness simpliciter
L.E. v. Desai,  O.J. No. 3381, Ontario Superior Court of Justice, August 21, 2006, J.M. Spence J.
The Appellant, a 51-year-old woman, had been hospitalised during August 2005 and diagnosed as having a psychosis. She had undergone considerable stress for over a year before her hospitalisation, following the sudden death of her husband. It was apparent to the Respondent physician that the Appellant would soon be receiving large sums of money related to the death of her husband. The Respondent found the Appellant to be incapable of managing her property. This decision was confirmed on an appeal to the Consent and Capacity Board. That decision was appealed to the Court.
The standard of review on appeals from the Board’s decision to the Superior Court of Justice was confirmed by the Supreme Court of Canada in Starson v. Swayze,  1 S.C.R. 722. The standard of review for questions of law is correctness. For questions and mixed fact and law, or questions of fact alone, the standard is reasonableness. The Court should decline to intervene in decisions of the Board that “could reasonably be the subject of disagreement among Board members properly informed of the facts instructed on the applicable law.” Both the Board and the Court should attach considerable weight to the health professional’s evidence on issues of capacity.
The Court reviewed the evidentiary record. It was reasonable to conclude that the Appellant, while suffering from a psychosis that still continues with prospective recurrent effect, became incapable of understanding and appreciating financial decisions as a result of two specific contributing conditions – drug abuse and a combination of stress and grief. These conditions continued to operate and to have an adverse effect upon her capacity for such an understanding up to the time of the hearing and could reasonably be expected to continue to do so. These factual determinations were within the range of the reasonable findings that could be made on the basis of the evidence.
The Appellant submitted that the conduct and words of the presiding Board member raised a reasonable apprehension of bias and that this deprived her of the right to a fair and impartial adjudication. The Court found that the presiding member had made “regrettable” comments about double doctoring by the Appellant; however, whatever basis for concern these comments might have presented was greatly diminished. The member had said immediately that he did not care about the matter. There was also no repetition on the member’s part of any use of the term “double doctoring,” nor any reference to breaking the law during the balance of the hearing. The impugned comments could not fairly be said to provide substantial grounds for an apprehension of bias.
In the result, the appeal was dismissed.
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