Gligorevic v. McMaster et al., (2012) 287 O.A.C. 302 (CA)

• Judge: Laskin, Cronk and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 01, 2011
• Jurisdiction: Ontario
• Citations: (2012), 287 O.A.C. 302 (CA);2012 ONCA 115

Gligorevic v. McMaster (2012), 287 O.A.C. 302 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. FE.026

In The Matter Of an application under subsection 32(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, as amended

Zeljko Gligorevic (applicant/appellant) v. Dr. Jeffry McMaster (respondent/respondent in appeal) and Lisa McCullough (intervenor)

(C53078; 2012 ONCA 115)

Indexed As: Gligorevic v. McMaster et al.

Ontario Court of Appeal

Laskin, Cronk and Blair, JJ.A.

February 21, 2012.

Summary:

Gligorevic was detained at the Centre for Addiction and Mental Health (the Hospital) by order of the Ontario Review Board following a verdict of not criminally responsible on account of mental disorder on charges of breaking and entering and arson. After Gligorevic refused antipsychotic medication recommended for treatment of his schizophrenia, a Hospital physician found him incapable with respect to treatment. At a review hearing, the Consent and Capacity Board (the Board) confirmed that incapacity finding. Gligorevic appealed the Board's decision, arguing that the assistance of counsel appointed by the Public Guardian and Trustee (PGT counsel) at the review hearing was ineffective.

The Ontario Superior Court Justice dismissed the appeal. Gligorevic appealed.

The Ontario Court of Appeal allowed the appeal. Gligorevic had instructed PGT counsel that he did not need or wish her services and he "dismissed" her. Consequently, PGT counsel had no authority from Gligorevic to represent him before the Board. Moreover, PGT counsel failed to inform the Board of any difficulty, conflict or uncertainty in her authority to represent Gligorevic at the hearing - In the result, the hearing was conducted by the Board under the mistaken assumption that Gligorevic was represented by counsel when, in reality, he was not. This was a miscarriage of justice. The court set aside the Board's incapacity finding and remitted the matter to the Board for a new capacity review hearing.

Barristers and Solicitors - Topic 1121

Authority - General - [See first Criminal Law - Topic 93.95 ].

Barristers and Solicitors - Topic 1546

Relationship with client - Duty to client - General - Duty of competence - [See first Criminal Law - Topic 93.95 ].

Criminal Law - Topic 93.95

Mental disorder - Dispositions by court or review board - Appeals or judicial review - Gligorevic was detained at the Centre for Addiction and Mental Health (the Hospital) by order of the Ontario Review Board following a verdict of not criminally responsible on account of mental disorder on charges of breaking and entering and arson - After Gligorevic refused antipsychotic medication recommended for treatment of his schizophrenia, a Hospital physician found him incapable with respect to treatment - At a review hearing, the Consent and Capacity Board (the Board) confirmed that incapacity finding - Gligorevic appealed the Board's decision, arguing that the assistance of counsel appointed by the Public Guardian and Trustee (PGT counsel) at the review hearing was ineffective - The Ontario Superior Court Justice dismissed the appeal - Gligorevic appealed - The Ontario Court of Appeal allowed the appeal - Gligorevic had instructed PGT counsel that he did not need or wish her services and he "dismissed" her - Consequently, PGT counsel had no authority from Gligorevic to represent him before the Board - Moreover, PGT counsel failed to inform the Board of any difficulty, conflict or uncertainty in her authority to represent Gligorevic at the hearing - In the result, the hearing was conducted by the Board under the mistaken assumption that Gligorevic was represented by counsel when, in reality, he was not - This was a miscarriage of justice - PGT counsel's conduct was not reasonable - At a minimum, it was incumbent on PGT counsel to inform the Board that her retainer had been denied by Gligorevic and, consequently, that she had no authority from him to represent his interests or provide him with assistance at the Board hearing - Further, PGT counsel was obliged to withdraw from further participation as appointed counsel for Gligorevic at the capacity hearing - Under s. 81(1)(b) of the Health Care Consent Act, Gligorevic was deemed capable for the purpose of retaining and instructing counsel - That deemed capacity extended to the decision to refuse to retain counsel - Gligorevic was not represented by counsel at the hearing, the Board erroneously thought that he was so represented and, as a result, the adjudicative process by which the Board's ruling was achieved could not be said to have been fair - A new Board capacity hearing was therefore necessary - See paragraphs 79 to 108.

Criminal Law - Topic 93.95

Mental disorder - Dispositions by court or review board - Appeals or judicial review - Gligorevic was detained at the Centre for Addiction and Mental Health (the Hospital) by order of the Ontario Review Board following a verdict of not criminally responsible on account of mental disorder on charges of breaking and entering and arson - After Gligorevic refused antipsychotic medication recommended for treatment of his schizophrenia, a Hospital physician found him incapable with respect to treatment - At a review hearing, the Consent and Capacity Board (the Board) confirmed that incapacity finding - Gligorevic appealed the Board's decision, arguing that the assistance of counsel appointed by the Public Guardian and Trustee (PGT counsel) at the review hearing was ineffective - The Ontario Superior Court Justice dismissed the appeal - Gligorevic appealed - The Ontario Court of Appeal stated that "the appeal to the Superior Court involved an allegation that PGT Counsel's assistance was ineffective. The determination of this issue required the Superior Court Justice to consider the test for ineffective assistance of counsel and to apply that test to the facts of this case as established by the written record before her. This, too, is a question of mixed fact and law. However, it attracts the deferential standard of palpable and overriding error, unless the Superior Court Justice made some extricable error in principle with respect to her appreciation of the test or its application, in which case the error may amount to an error of law that is reviewable on the correctness standard. Further, where hearing fairness is fatally compromised, standard of review considerations assume less significance" - See paragraphs 43 to 44.

Criminal Law - Topic 93.95

Mental disorder - Dispositions by court or review board - Appeals or judicial review - A party to a proceeding before the Consent and Capacity Board had a statutory right of appeal to the Superior Court on a question of law or fact or both (s. 80(1) of the Health Care Consent Act) - Under s. 80(10) of the Act, the Superior Court enjoyed a wide remedial jurisdiction on a s. 80(1) appeal - The Ontario Court of Appeal stated that "an argument of ineffective assistance of counsel may be raised as a ground of appeal from a Board treatment capacity decision. The Superior Court's jurisdiction to consider such an allegation is anchored in its wide authority under ss. 80(1) and 80(10) of the Act. This court's jurisdiction to do so derives from s. 6(1)(b) of the CJA [Courts of Justice Act], which permits appellate review of any final order by a Superior Court Justice, and its authority under ss. 134(1) and (6) of the CJA. In either forum, in my opinion, an ineffective assistance argument may be framed as a Charter violation, or as the cause of a miscarriage of justice" - See paragraphs 45 to 65.

Criminal Law - Topic 93.95

Mental disorder - Dispositions by court or review board - Appeals or judicial review - Amicus curiae urged the court to adopt a modified standard for assessing the incompetency of counsel in the mental health context - They argued that "the unique circumstances of persons with mental disorder[s] appearing before the [Consent and Capacity] Board" justified a less deferential approach to review of counsel's performance than that applicable in the criminal law context - As a result, they contended that the strong presumption of the competency of counsel, stressed in the cases G.D.B., Archer, Joanisse and White, should be "more flexibly applied" on appeals from Board treatment capacity decisions - The Ontario Court of Appeal rejected the proposed modified test for addressing the performance component of an ineffective assistance claim on appeal from a Board treatment capacity decision - The governing test was that laid down in G.D.B., Archer, Joanisse and White - See paragraphs 66 to 78.

Persons of Unsound Mind - Topic 1437

Treatment or medical procedures - Consent - Substitute decision maker - Appeal from board - [See all Criminal Law - Topic 93.95 ].

Cases Noticed:

Starson v. Swayze et al., [2003] 1 S.C.R. 722; 304 N.R. 326; 173 O.A.C. 210; 2003 SCC 32, refd to. [para. 6].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 43].

Giecewicz v. Hastings - see D.G. v. Hastings.

D.G. v. Hastings (2007), 232 O.A.C. 39; 2007 ONCA 890, leave to appeal refused (2008), 387 N.R. 395 (S.C.C.), refd to. [para. 43].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 44].

Country Pork Ltd. v. Ashfield (Township) et al. (2002), 162 O.A.C. 223; 60 O.R.(3d) 529 (C.A.), refd to. [para. 44].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201 (C.A.), refd to. [para. 44].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 44].

FL Receivables Trust 2002-A v. Cobrand Foods Ltd., 2007 ONCA 425, refd to. [para. 44].

Fendelet v. Dohey, [2007] O.A.C. Uned. 279; 2007 ONCA 475, refd to. [para. 44].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), leave to appeal refused (1997), 208 N.R. 79; 99 O.A.C. 79 (S.C.C.), refd to. [para. 46].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 52].

R. v. Archer - see R. v. R.W.A.

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 52].

R. v. L.C.B. (1996), 88 O.A.C. 81; 27 O.R.(3d) 686 (C.A.), refd to. [para. 52].

D.W. v. White et al. (2004), 189 O.A.C. 256 (C.A.), leave to appeal refused (2005), 339 N.R. 400 (S.C.C.), refd to. [para. 53].

Teganya v. Canada (Minister of Citizenship and Immigration) (2011), 386 F.T.R. 160; 2011 FC 336, refd to. [para. 55].

Parast v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 411; 153 A.C.W.S.(3d) 1210; 2006 FC 660, refd to. [para. 55].

Shirvan et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 920; 143 A.C.W.S.(3d) 1098; 2005 FC 1509, refd to. [para. 55].

Robles et al. v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 229; 122 A.C.W.S.(3d) 19; 2003 FCT 374, refd to. [para. 55].

Malette v. Shulman (1990), 37 O.A.C. 281; 72 O.R.(2d) 417 (C.A.), refd to. [para. 58].

Stetler et al. v. Agriculture, Food and Rural Affairs Appeal Tribunal (Ont.) et al. (2005), 200 O.A.C. 209; 76 O.R.(3d) 321 (C.A.), leave to appeal refused (2006), 352 N.R. 196; 219 O.A.C. 400 (S.C.C.), refd to. [para. 60].

Strickland v. Washington (1984), 466 U.S. 668, refd to. [para. 66].

R. v. D.M.G. (2011), 281 O.A.C. 85; 105 O.R.(3d) 481; 2011 ONCA 343, refd to. [para. 67].

R. v. DiPalma, [2005] 2 C.T.C. 132 (Ont. C.A.), refd to. [para. 67].

R. v. White (H.S.) and Sennets (S.) (1997), 99 O.A.C. 1; 32 O.R.(3d) 722 (C.A.), refd to. [para. 68].

K.G.F., Re, 306 Mont. 1, dist. [para. 75].

R. v. Dunbar (A.A.) et al. (2003), 191 B.C.A.C. 223; 314 W.A.C. 223; 2003 BCCA 667, refd to. [para. 76].

R. v. Imona-Russell - see R. v. Russell (W.I.).

R. v. Russel (W.I.) (2011), 277 O.A.C. 264; 104 O.R.(3d) 721; 2011 ONCA 303, refd to. [para. 106, footnote 6].

R. v. Lepage (D.L.) (2006), 217 O.A.C. 82; 214 C.C.C.(3d) 105 (C.A.), refd to. [para. 106, footnote 6].

R. et al. v. Runnalls (N.S.), [2011] O.A.C. Uned. 334; 106 O.R.(3d) 291; 2011 ONCA 364, refd to. [para. 106, footnote 6].

Hillier v. Milojevic - see Bon Hillier v. Milojevic.

Bon Hillier v. Milojevic, [2010] O.T.C. Uned. 435; 2010 ONSC 435 (Sup. Ct.), refd to. [para. 106, footnote 6].

Cavalier v. Ramshaw, [2010] O.T.C. Uned. 5402; 2010 ONSC 5402 (Sup. Ct.), refd to. [para. 106, footnote 6].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, C-43, sect. 6(1)(b), sect. 134(1), sect. 134(6) [para. 65].

Health Care Consent Act, S.O. 1990, c. 2, Sch. A, sect. 80(1), sect. 80(10) [para. 65]; sect. 81(1) [para. 20].

Counsel:

Zeljko Gligorevic, appearing in person;

Mercedes Perez and Karen Steward, as amicus curiae;

Janice E. Blackburn and Ioana Bala, for the respondent;

Heidi Rubin, for the intervenor.

This appeal was heard on November 1, 2011, before Laskin, Cronk and Blair, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Cronk, J.A., and was released on February 21, 2012.