COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Mullins
          v. Levy,

2009
          BCCA 6

Date: 20090113

Docket: CA033348

Between:

Stephen Norman Mullins

Appellant/

Respondent by Cross-Appeal

(Plaintiff)

And

Dr. John Mark Levy, Dr. Joelle Materi, Dr. Rua Roxanne
    Mercier,
Dr. Soma Ganesan, Vancouver Hospital & Health Sciences Centre,
Western Pacific Security Group Ltd., Geoff Brown, Donna Wright,
Robert Coleman, Raymond Weipprecht, Cyrus Farivar

Respondents/

Appellants by Cross-Appeal

(Defendants)

And

British Columbia
Schizophrenia
    Society

Intervenor

And

The Attorney General of British Columbia

Pursuant to Notice of

Constitutional Question

Before:

The
          Honourable Madam Justice Kirkpatrick

The
          Honourable Mr. Justice Chiasson

The
          Honourable Mr. Justice Bauman

N.D.
          Mullins, Q.C.

Counsel for the Appellant, Stephen Norman Mullins,
          Respondent on Cross-Appeal

D.W.
          Pilley

Counsel for the Respondents,

Dr. John Mark Levy, Dr. Joelle Materi, Dr. Rua
          Roxanne Mercier, and

Dr. Soma Ganesan

J.G.
          Dives

Counsel for the Respondents

Vancouver Hospital and Health Sciences Centre, Western
          Pacific Security Group Ltd., Geoff Brown, Donna Wright, Robert Coleman,
          Raymond Weipprecht and

Cyrus Farivar

L.
          Mrozinski

Counsel for Attorney General of British Columbia pursuant
          to Notice of Constitutional Question

Place
          and Date of Hearing:

Vancouver, British Columbia

8, 9 and 10 October 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

13 January 2009

Written
          Reasons by
:

The
          Honourable Madam Justice Kirkpatrick

Concurred
          in by:

The
          Honourable Mr. Justice Chiasson

The
          Honourable Mr. Justice Bauman

Reasons
    for Judgment of the Honourable Madam Justice Kirkpatrick:

I.
    INTRODUCTION

[1]

Stephen Norman Mullins appeals the order of the Supreme Court entered
    on 22 December 2006. Mr. Mullins foremost objective in bringing this
    appeal is to clear his name from the stigma of mental illness. A related objective
    is to establish that those who are, or who are perceived to be, mentally disordered
    have the same rights as all other Canadians under the
Canadian Charter
    of Rights and Freedoms
, Part I of the
Constitution Act, 1982
,
    being Schedule B of the
Canada Act

1982
(U.K.),
    1982, c. 11.

[2]

The trial consumed 34 days over three years. The action arose from
    events that occurred following Mr. Mullins attendance at the emergency
    department of the Vancouver Hospital and Health Sciences Centre (VGH or
    the hospital) in the early morning of 9 May 1998.

[3]

The trial judges reasons, indexed as 2005 BCSC 1217, 258 D.L.R. (4th),
    460 and 33 C.C.L.T. (3d) 42, review in detail the circumstances of the case.
    For the purposes of this appeal, it is necessary to recount only the more
    salient features.

II.         BACKGROUND

A.         Facts

[4]

In April 1998, Mr. Mullins was experiencing stress in his business
    and family relationships. In particular, his step-grandmother died at the
    end of April, and his uncle suffered a stroke. He had a close relationship
    with both of these relatives. Mr. Mullins took over running his uncles
    business which was housed in an area of Surrey that Mr. Mullins described
    as crime-ridden. He came to believe that Hells Angels were using the business
    or trying to acquire it. In addition, Mr. Mullins learned that, unbeknownst
    to his family, his elderly uncle had married a much younger immigrant woman
    from China, who, along with some undesirable associates, wanted Mr. Mullins
    removed from the business.

[5]

Mr. Mullins volunteered for many years with the North Shore Rescue
    team. He believes that the recovery of deceased and seriously injured people
    left him susceptible to critical incident stress, a recognized condition
    that is experienced by, among others, police officers who are confronted by
    traumatic and violent events.

[6]

On 1 May 1998, Mr. Mullins experienced a panic attack. He was
    at his parents home in West Vancouver and experienced difficulty breathing,
    rapid heartbeat, and uncontrollable movement of his limbs. He telephoned 911
    and asked for the fire department, believing that they would attend more quickly
    than an ambulance. The fire crew arrived, followed by an ambulance. Mr. Mullins
    asked to be taken to VGH. When the ambulance crew refused, Mr. Mullins
    called the police. When the police arrived, they handcuffed Mr. Mullins
    and placed him in the police car. Mr. Mullins kicked at the car windows
    and door. He was ultimately taken to the police station where an ambulance
    was waiting to take him to VGH. At VGH he was diagnosed as having suffered
    from a panic attack.

[7]

Mr. Mullins testified that he sought treatment for stress from
    a psychologist who recommended that he reduce his stress and get more sleep.
    Mr. Mullins suspended his activities with his uncles business and most
    of his own business activities.

[8]

Dr. Burak, a family doctor and friend of Mr. Mullins father,
    testified that he treated Mr. Mullins on 7 May 1998 for the first time.
    Mr. Mullins indicated that he needed help and agreed to see a psychiatrist.
    Dr. Burak provided a referral to a psychiatrist on an urgent basis.

[9]

On 9 May 1998, before Mr. Mullins was able to see the psychiatrist,
    he woke up sweating with a racing heart and breathing difficulties. He called
    the police to take him to VGH.

[10]

Mr. Mullins arrived at VGH in the early morning of 9 May 1998.
    The entire hospital is designated as a psychiatric assessment unit pursuant
    to a ministerial order under s. 3(2) of the
Mental Health Act
.
    The psychiatric department is also referred to as the Psychiatric Assessment
    Unit (PAU). Dr. McKnight, an emergency physician, met briefly with
    Mr. Mullins several times during the night before his shift ended at
    7:00 a.m. He assessed Mr. Mullins as suffering from mania but did not
    consider him sufficiently ill so as to require certification.

[11]

It appears that while Mr. Mullins agreed with Dr. McKnight
    that he should see a psychiatrist, he was required to wait until the morning
    when the Psychiatric Assessment Unit (the PAU) had a psychiatrist available
    to see him. He waited in the emergency ward and wrote several pages of notes.
    The notes, which have been lost, set out, among other things, his direction
    not to be medicated. Mr. Mullins testified that the notes indicated his
    clear instruction that if he did not like the medical care he did not have
    to accept it and was entitled to leave the hospital.

[12]

Toward the end of Dr. McKnights shift, he gave permission to
    Mr. Mullins to leave the hospital to participate in a charity run held
    at the University of British Columbia campus.

[13]

The respondent Dr. Mercier, an emergency room physician, took
    over from Dr. McKnight when his shift ended. She was introduced to Mr. Mullins
    and observed his interaction with Dr. McKnight. From those observations,
    Dr. Mercier formed the opinion that Mr. Mullins was suffering from
    hypermania or hypomania (a lesser form of mania). She did not disagree with
    Dr. McKnight when Mr. Mullins asked for permission to go on the
    run that his condition was not sufficiently serious to warrant committal.
    She disagreed, however, that he should be given permission to leave but said
    nothing.

[14]

While Mr. Mullins was absent from the hospital, Dr. Mercier
    reviewed his chart, Dr. McKnights notes and Mr. Mullins handwritten
    notes. Dr. Mercier described Mr. Mullins notes as difficult to
    follow  a flight of ideas, jumping from one topic to another without a logical
    connecting theme. Having met Mr. Mullins, and having read his chart
    and the notes, Dr. Mercier formed the opinion that he had a manic depressive
    disorder. She was very concerned that when he was away from the hospital,
    Mr. Mullins might cause harm to himself.

[15]

When Mr. Mullins returned to the hospital around noon, a triage
    nurse informed Dr. Mercier of his return. Dr. Mercier escorted Mr. Mullins
    to an interview room in the PAU which is located immediately adjacent to the
    emergency department.

[16]

The respondent psychiatric resident, Dr. Materi, was not yet qualified
    as a physician or psychiatrist and was accordingly unable to sign a medical
    certificate under the
Mental Health Act,
R.S.B.C. 1996, c. 288
    (the
Act
). Dr. Materi had read Mr. Mullins handwritten
    notes. She interviewed Mr. Mullins for about 30 minutes and concluded
    that he was suffering from a manic episode, possibly bipolar disorder mania.
    She concluded that his behaviour was escalating throughout the interview.
    Dr. Materi testified that Mr. Mullins demeanour fluctuated throughout
    the interview from friendly to irritable, anxious and at times agitated to
    predominantly irritable and agitated. He exhibited pressured speech, a symptom
    consistent with a manic episode. While she had read his notes which indicated
    he would refuse medication, Dr. Materi was of the opinion that he required
    medication. Dr. Materi testified that she believed that Mr. Mullins
    had no insight into his condition.

[17]

There is no dispute that, if left untreated, a manic episode can lead
    to severe long term problems in persons suffering from bipolar disorder. For
    instance, the respondent Dr. Levy, a psychiatrist, testified:

I
    think the standards in our community, or certainly in our medical practice,
    are to take a first episode of psychosis very seriously, because if left untreated
    can lead to long-term problems, effects, that if treated early we can get
    a person back to their normal level of functioning.

Dr. McKnight, in cross-examination, stated:

the literature is fairly solid from a scientific perspective that patients
    who receive treatment early for major psychiatric illness tend to do better
    in terms of their quality of life.

Similarly,
    the respondent Dr. Ganesan, a psychiatrist, testified in cross-examination
    that:

the earlier the intervention the better it is in term[s] of rehabilitation,
    faster response to treatment, and the least  the least damaging to the patient
    and to others.

[18]

Dr. Materi concluded that Mr. Mullins met the criteria for
    involuntary admission under the
Act
. She closed the interview
    with Mr. Mullins and left to discuss her treatment plan with her supervisor,
    the respondent Dr. Ganesan. Before seeing Dr. Ganesan, Dr. Materi
    spoke with the officer or team leader on duty to deal with emergency department
    security, the respondent Mr. Brown, and advised him that Mr. Mullins
    either had been certified or was in the process of being certified and he
    was not to leave the hospital. At about the same time, Dr. Materi spoke
    with Dr. Mercier and advised her that Mr. Mullins was escalating
    and asked if Dr. Mercier would sign a certificate. Dr. Mercier,
    without further interviewing Mr. Mullins, signed a medical certificate
    as a prelude to involuntary admission or certification under the
Act
.
    Dr. Materi then went to speak with Dr. Ganesan.

[19]

Mr. Brown assembled a security team to carry out Dr. Materis
    direction. Mr. Brown did not ask to see any medical certificates. The
    evidence before the trial judge was that security staff are not permitted
    to look at patient records because of confidentiality issues.

[20]

In the meantime, Mr. Mullins was resting in the interview room.
    He was tired from having been awake most of the night and having participated
    in a 10 km run. Mr. Mullins heard the chatter on the security staff radio
    and left the interview room to investigate. The security staff ordered him
    to stay in the room. Mr. Mullins testified that he tried to call the
    police from the interview room but was unable to do so. He then attempted
    to leave the room by force. The security staff tackled and restrained him,
    and took him to a quiet room until he could be assessed by Dr. Ganesan.
    By this time, Dr. Merciers certificate had been completed.

[21]

Mr. Mullins described having his clothes cut from his body and
    being injected with medication that rendered him helpless. It is unclear as
    to the precise time at which the first medication was administered.

[22]

At about the same time, Dr. Materi spoke with Dr. Ganesan.
    Dr. Ganesan was about to conduct his own assessment of Mr. Mullins
    when he heard the noise associated with Mr. Mullins attempt to leave
    the interview room and the ensuing restraint by the security staff. When he
    arrived at the quiet room, he found Mr. Mullins unwilling or incapable
    of responding to his questions. Mr. Mullins was repeatedly demanding
    that he be permitted to call a lawyer. Based on what he had been told by Dr. Materi
    and from his visual observations of Mr. Mullins, Dr. Ganesan concluded
    that Mr. Mullins needed to be involuntarily detained under the
Act
.
    He completed a medical certificate and ordered medication to be administered
    to Mr. Mullins to calm him.

[23]

The respondent Cyrus Farivar was the psychiatric nurse on duty. Immediately
    after the two medical certificates were completed, Nurse Farivar signed a
    form for Consent to Treatment pursuant to s. 31 of the
Act
which allows for medications to be administered involuntarily.

[24]

Within approximately four hours of his committal, Mr. Mullins
    father, who is a lawyer and who represented his son at trial and on appeal,
    met with his son in the hospital.

[25]

Dr. Levy assumed treatment of Mr. Mullins on the following
    day, 10 May 1998. Dr. Levy confirmed that Mr. Mullins required treatment
    for mania and that his continued hospitalization was necessary for his own
    protection. When Dr. Levy denied Mr. Mullins demands to be released
    from the PAU, the writ of summons was served on Dr. Levy. As he considered
    himself to be in conflict, Dr. Levy arranged for another psychiatrist,
    Dr. Duke, to assess Mr. Mullins. Dr. Duke examined him on 14
    May 1998 and agreed to his discharge on the condition that he continue the
    medication he had been receiving and remain under medical supervision.

[26]

Mr. Mullins was detained for five days and medicated throughout
    that period against his express wish.

[27]

In his statement of claim, Mr. Mullins alleged an array of wrongful
    acts and omissions by the defendants for which he claims damages. He also
    seeks a declaration that his rights guaranteed by the
Charter
were infringed and damages in respect of the infringement, as well as a declaration
    that his detention was contrary to the
Mental Health Act
and
    the regulations. The trial commenced in April 2002, but was adjourned to allow
    Mr. Mullins to issue a notice of constitutional question to challenge
    the validity of the
Mental Health Act
. As the trial judge noted
    at para. 18, the constitutional challenge was taken in reaction to the defendants
    reliance on the immunity provisions contained in s. 16 of the
Act
.
    This section provides a defence against liability where parties are found
    to have acted in good faith and without an improper purpose.

B.        A Note Regarding the Relevant Legislation

[28]

The crux of the issues in this case revolves around the interpretation
    and application of the
Mental Health Act
, R.S.B.C. 1996, c.
    288 (the
Act
). A section of particular relevance is s. 22,
    which outlines the requirements of involuntary admissions.

[29]

It is important to note that since the incident on 9 May 1998, but
    evidently not because of it, the
Act
was amended (see the
Mental
    Health Amendment Act
, S.B.C. 1998, c. 35). Notably, the amendments
    revised s. 22. The amendments came into force by regulation (several
    amendments, including those to s. 22, came into force by B.C. Reg. 233/99).
    The result is that the current
Mental Health Act
now requires
    only one medical certificate to be signed in order for a person to be involuntarily
    admitted. The amendments also changed key definitions in the current
Mental
    Health

Act
. Thus, the precedential impacts of the trial
    judgment and of this appeal are appreciably attenuated.

[30]

For the sake of clarity, when I refer to the
Act
 in
    these reasons, I am referring to the
Mental Health Act
, R.S.B.C.
    1996, c. 288 as it read at the time of the incident (i.e. prior to the 1998
    amendments), not as it currently reads, unless I expressly indicate otherwise.

C.        The Trial Judgment

[31]

The trial judge described Mr. Mullins background and the circumstances
    leading up to his hospital detention, including the perceived stressors in
    Mr. Mullins life. For our purposes, it is sufficient to note that the
    trial judge was sceptical of Mr. Mullins explanations for his behaviour.
    The trial judge held, at para. 45:

The
    detailed evidence of the plaintiff concerning the events surrounding his uncles
    business is quite bizarre. The factual events are uncontradicted, however
    the inferences the plaintiff appears to have drawn from most of the facts
    are not ones I am prepared to accept without more convincing evidence.

[32]

The trial judge correctly observed that the underlying issue in the
    action was whether Mr. Mullins was admitted to the PAU in conformity
    with the requirements of the
Act
. The trial judge agreed with
    the plaintiffs submission that the
Act
is a badly drafted piece
    of legislation.

[33]

Section 22 of the
Act
, the provision governing involuntary
    admissions, read as follows:

22
    (1) On receiving 2 medical certificates completed by 2 physicians in accordance
    with subsection (2), the director of a Provincial mental health facility may
    admit a person to the facility and detain the person in it.

(2)
    Each medical certificate must be completed and signed by a physician who is
    not disqualified under subsection (3) and who has examined the person whose
    admission is requested not more than 14 days before the date of admission
    and must set out

(a) a statement
    by the physician that he or she has examined the person whose admission is
    requested on the date or dates set out and is of the opinion that the person
    is a mentally disordered person,

(b) in summary
    form the reasons for the opinion, and

(c) in addition
    to the statement required under paragraph (a), a separate statement by the
    physician that he or she is of the opinion that the person whose admission
    is requested

(i) requires
    medical treatment in a Provincial mental health facility, and

(ii) requires
    care, supervision and control in a Provincial mental health facility for the
    persons own protection or for the protection of others.

(3)
    A physician is disqualified from giving a valid medical certificate under
    this section if the physician is

(a) the
    person whose admission is requested,

(b) engaged
    in the practice of medicine in partnership with the physician who completes
    the other certificate, or

(c) a person
    employed as an assistant by a physician who completes either of the medical
    certificates in respect of the person whose admission is requested.

(4)
    A medical certificate given under this section becomes invalid on the 15th
    clear day after the date on which the physician examined the person who is
    the subject of the certificate.

(5)
    The 2 certificates completed as required under this section are sufficient
    authority for a person to apprehend and transport the person named in the
    statement made under subsection (2) (a) to a Provincial mental health facility.

Relevant
    terms are defined in s. 1 of the
Act
. Director is defined
    as:

a person who is appointed in charge of a Provincial mental health facility
    and includes a person authorized by a director to exercise a power or carry
    out a duty conferred or imposed on the director under this Act.

Mentally disordered
    person includes a mentally ill person. The definition of mentally ill person
    is as follows:

a person who is suffering from a disorder of the mind

(a)  that
    seriously impairs the persons ability to react appropriately to his or her
    environment or to associate with others, and

(b)  that
    requires medical treatment or makes care, supervision and control of the person
    necessary for the persons protection or for the protection of others

[34]

The question of who was the director of the PAU at the time of Mr. Mullins
    admission was not uncontroversial. The evidence at trial was varied and the
    trial judge noted that the legislation was unclear. Ultimately, the trial
    judge accepted that Dr. Levy and Dr. Watson, head of the Psychiatric
    Department in 1998, were both directors within the meaning of the
Act
.
    He concluded that, at the time in question, Drs. Materi and Ganesan were
    designates of Dr. Levy for purposes of admission under the
Act
.

[35]

Central to the trial judges finding of liability against the defendants,
    with the exception of Dr. Levy and Nurse Farivar, was the issue as to
    whether two medical certificates had been completed at the time Mr. Mullins
    was admitted and detained in the PAU. Section 22(2)(a) of the
Act
requires that each medical certificate contain a statement by the physician
    that he or she examined the person to be admitted. While examine or examination
    is not defined in the
Act
, the trial judge found it necessitated
    a patient interview and personal examination of the patient by the physician.
    He stated at para. 83:

The
    opinions required of psychiatrists certifying a patient to be properly informed
    will require review and consideration of available medical history, information
    on patient interview and personal examination.

It
    is likely that the trial judges interpretation was influenced by Dr. Ganesans
    evidence that he wished to interview the plaintiff as he certainly appreciated
    the value of an in person interview and observed behaviour which he considered
    was 50% of the examination process (para. 93).

[36]

The trial judge found that Dr. Mercier did not conduct an examination
    of Mr. Mullins prior to signing the medical certificate. He noted at
    para. 86 that Dr. Merciers exposure to Mr. Mullins was very brief
    and any consideration of an involuntary committal would have required an examination
    and review process she did not consider taking. The trial judge observed
    at para. 88 that there was no notation by Dr. Mercier in the hospital
    chart and no record of any relevant difference from Dr. McKnights conclusion
    that Mr. Mullins did not meet the criteria for involuntary certification
    at 7 a.m. on 9 May 1998.

[37]

Based on his interpretation of examination, the trial judge was also
    concerned by the conduct of Dr. Materi. The trial judge stated at para.
    92:

It
    is also difficult to understand how in the circumstances Dr. Materi could
    have possibly believed Dr. Mercier was a physician who could provide
    a certificate in respect of the plaintiff without conducting an examination.
    Dr. Materi had reviewed the plaintiffs chart and it contained no indication
    Dr. Mercier had examined the plaintiff, or indeed made any observations
    of him. She was aware Dr. Mercier was not going to examine the plaintiff
    before signing a Certificate however Dr. Ganesan would be led to believe
    it was the opinion of another physician who had examined the plaintiff.

[38]

The trial judge also attributed fault to Dr. Materi for her role
    in initiating the involvement of the security staff, leading to Mr. Mullins
    detention.

[39]

With respect to Dr. Ganesan, the trial judge concluded that he
    attempted to interview Mr. Mullins. He noted the absurdity that could
    result if an examination under s. 22 of the
Act
could be
    thwarted by a patient who refused to be interviewed. In the circumstances,
    the trial judge found that Dr. Ganesan conducted an examination within
    the meaning of s. 22. However, the trial judge found Dr. Ganesan
    negligent in not taking appropriate action when he became aware of Mr. Mullins
    seizure and detention.

[40]

In addition, the trial judge found Dr. Ganesan had a reasonable
    basis to consider Mr. Mullins was a mentally ill person within the
    meaning of the
Act
:

[106]
    Dr. Ganesan was of the opinion persons with mania or hypomania can be
    unpredictable and behave in a manner destructive or harmful to themselves.
    Dr. Ganesans view is that persons with bipolar disorder are most dangerous
    to themselves during a manic phase. Dr. Ganesans personal observations
    of the plaintiff caused him concern the plaintiff might injure himself but
    he of course was witness to the violent nature of apprehension and confinement
    taking place. Dr. Materis findings were of hypomania with escalation
    occurring.

[107]
    In my view because of the detailed report and findings of Dr. Materi
    coupled with the visual observation and attempt to communicate with the plaintiff
    he had a reasonable basis to consider the plaintiff met the criteria of a
    mentally ill person requiring care, supervision and control of the person
    necessary for the persons protection, at the time and at least until a more
    comprehensive review and assessment was possible.

[41]

The trial judge reviewed the medical evidence concerning Dr. Materis
    preliminary diagnosis that Mr. Mullins was experiencing mania. The difficulties
    associated with the manic phase were recognized by the trial judge at para.
    121:

...
    The evidence is that an episode of mania can come on quickly. The evidence
    is that Dr. Mercier considered the plaintiff was suffering hypomania
    from her brief encounter with him and Dr. McKnight certainly observed
    indications of hypomania and his finding against Certification was only his
    belief that the plaintiffs status was not serious enough on his observation
    to warrant involuntary confinement, not that escalation might not occur worsening
    or endangering the plaintiff.

[42]

Notwithstanding his conclusions that Dr. Materis diagnosis was
    reasonable and Dr. Ganesan had examined Mr. Mullins in accordance
    with the
Act
and found him in need of care, the trial judge
    found Drs. Mercier, Materi and Ganesan liable for the false imprisonment
    of Mr. Mullins. The foundation for liability appears to be that, in respect
    of Dr. Materi, she ought to have arranged more quickly for Dr. Ganesan
    to conduct his interview and should not have initiated the actions of the
    security staff. In respect of Dr. Mercier, the trial judge found that
    she did not conduct an examination of Mr. Mullins, and thus the medical
    certificate signed by her was invalid. As to Dr. Ganesan, the trial judge
    found that he should have considered interim measures before signing his medical
    certificate to allow him to investigate the circumstances of Dr. Merciers
    certificate and Mr. Mullins initial detention.

[43]

The trial judge dismissed the claim against Dr. Levy whom he found
    had acted in good faith and with reasonable care in taking charge of Mr. Mullins
    on the authority of properly completed medical certificates, thereby exempting
    him from liability for damages under s. 16(f) of the
Act
which provides that:

16.
    A person is not liable in damages as the result of doing any of the following
    in good faith and with reasonable care:

(f)  transporting
    or taking charge of a person on the authority of properly completed

(i)
    applications and medical certificates, or

(ii)
    medical certifications

[44]

Dr. Levy conducted interviews and assessments of Mr. Mullins
    on 10 and 11 May 1998, from which he concluded that treatment for mania and
    continued hospitalization were required. The trial judge found that, unlike
    Dr. Ganesan, the defendant Dr. Levy was entitled to assume the certificates
    signed pursuant to Section 22 of the
Act
by Drs. Mercier and Ganesan
    were valid and he was entitled to rely upon them without undertaking a review
    (para. 151).

[45]

The trial judge dismissed the action against Nurse Farivar essentially
    on the basis that Nurse Farivar was authorized by the director of the PAU,
    Dr. Levy, to sign the form provided for by s. 7(5) of the
Mental
    Health Regulation
that authorizes treatment for persons detained under
    s. 22 of the
Act
(B.C. Reg. 155/97). The form contained
    Nurse Farivars statement that [t]he nature of the condition, the reasons
    for and the likely consequence(s) of the treatment have been explained to
    me by Dr. Materi (para. 145).

[46]

The trial judge found the security staff and an orderly, Raymond Weipprecht,
    (whom I will refer to collectively as the security staff) liable and the
    hospital vicariously liable for Mr. Mullins detention on the basis that
    the security staff had no reason to believe that Mr. Mullins was dangerous
    or violent. He rejected the arguments that their actions were necessary to
    fulfill the hospitals obligations at common law, and that the security staff
    were merely following orders and ought not to be held liable:

[163]
    The evidence is that the security personnel act on the direction of doctors
    in restraining and detaining patients. They do not appear to question, seek
    verification, or exercise independent analysis in respect of implementation
    of involuntary admissions and detentions under the
Act
. That
    is what the defendant hospital wishes them to do and they must therefore stand
    fully responsible as employer for their conduct.

[186]
    I do not accept the defendants argument they were simply  meeting VGHs
    common law obligation to maintain a reasonable level of supervision and security
    for patients and visitors and to contain any dangerous or violent situations
    on the premises. There was no dangerous or violent situation prior to the
    defendant Dr. Materi ordering their intervention.

[187]
    The actions taken by the security guards may be explained, but not legally
    justified, by the orders under which they were operating. The force used may
    only have been commensurate with that needed to safely restrain and detain
    the plaintiff in the circumstances. They however had no right to restrain
    and detain him. They chose to act entirely on the view of the instructing
    doctor and where that doctor has no foundation for the detention that cannot
    excuse the action of these defendants... .

[47]

The trial judge assessed general damages (including aggravated damages)
    globally in respect of all the responsible defendants in the sum of $15,000.
    He dismissed Mr. Mullins claims for punitive damages as not pleaded
    and unsupported by the evidence. He also dismissed the claim for loss of income
    earning capacity related to his lapsed pilot license that Mr. Mullins
    claimed was attributable to the misdiagnosis of mania, as damages in respect
    of this were not proven. He also refused to grant Court Order Interest in
    respect of Mr. Mullins award of general damages.

[48]

Finally, the trail judge dismissed Mr. Mullins constitutional
    challenge on the basis that he lacked standing to challenge the
Act
as an unjustifiable violation of ss. 7,8,9,11 and 12 of the
Charter
and to challenge the
Health Care (Consent) and Care Facility (Admission)
    Act
, R.S.B.C. 1996, c. 181, as infringing s. 15 of the
Charter
.
    The trial judge refused to grant an order for the destruction of hospital
    records as a
Charter
remedy.

III.        ISSUES ON APPEAL

A.         Grounds of Appeal

[49]

Mr. Mullins asserts 14 grounds of appeal. For clarity of analysis,
    these issues can be reduced to five categories. First and foremost, Mr. Mullins
    challenges the trial judges finding that he was a mentally disordered person
    under the
Act
. Second, he seeks to overturn the trial judges
    dismissal of the action in relation to Dr. Levy and third, in relation
    to Nurse Farivar. Fourth, he asserts the trial judge erred in several respects
    in his analysis of the
Charter
issues raised at trial. More
    specifically, he asks this Court to find that, contrary to the trial judges
    findings, his
Charter
rights were infringed and he is entitled
    to damages for such infringement as well as an order for the destruction of
    his hospital records. Mr. Mullins also challenges the trial judges decision
    that he lacked standing to question the constitutional validity and in finding
    the
Act
valid. Finally, Mr. Mullins claims that the damages
    awarded were inordinately low and should have attracted Court Order Interest.

B.        The Cross-Appeal of the Doctors

[50]

The respondent doctors, Mercier, Materi and Ganesan, cross-appeal on
    the grounds that the trial judge erred in holding that Dr. Mercier did
    not conduct an examination, that Dr. Ganesan breached the appropriate
    standard of care, and in finding Dr. Materi liable.

C.        The Cross-Appeal of the Hospital and Staff

[51]

The respondent hospital and security staff cross-appeal on the basis
    that the claim against them should have been dismissed as their actions were
    protected by s. 16 of the
Act
, or in the alternative, were
    justified at common law. Further, and in the alternative, they argued the
    trial judge failed to allocate damages amongst the different defendants for
    their conduct.

[52]

The issues raised by the parties on appeal and cross-appeal are obviously
    related and interconnected. This presents an analytical challenge; if certain
    legal findings of the trial judge are determined to be incorrect by this Court,
    a cascade of legal results will follow. For the sake of clarity I will deal
    with the issues, not in the order in which they are raised by the parties,
    but in an order that logically reflects the interrelationship between the
    issues at stake and their outcomes. For that reason, my analysis will have
    the following structure: first I will deal with the constitutional questions;
    second, I will deal with the issue raised by Mr. Mullins regarding the
    trial judges finding that he was a mentally disordered person under the
Act
; then I will deal with the issues raised in the cross-appeal
    of the respondent doctors; following that I will deal with the issues raised
    in the cross-appeal of the respondent security staff and hospital; and finally
    I will deal with the remaining issues raised by Mr. Mullins on appeal.

IV.        DISCUSSION

A.         The Constitutional Issues

[53]

As the trial judge found, Mr. Mullins initially brought his constitutional
    challenge with the aim of defeating the immunity provisions of s. 16
    of the
Act
. Mr. Mullins
Charter
challenges
    broadened over the course of the trial to include challenges to ss. 22
    and 31 (the involuntary admission and treatment provisions), to various words
    and phrases in the
Act
, and a challenge to s. 2 of the
Health Care (Consent) and Care Facility (Admission) Act
as being
    contrary to s. 15(1) of the
Charter
.

[54]

The trial judge framed the essential question posed by Mr. Mullins
    as, the
Act
must be invalid if it could authorize the involuntary
    committal and treatment of persons, as he viewed himself, not suffering a
    serious mental disorder (para. 190).

[55]

The trial judge correctly pointed out that while the object of Mr. Mullins
    challenge was to obtain a larger damage award, this was not available in the
    circumstances. He identified the flaw in Mr. Mullins argument at paras. 191-192:

In
    this fashion has a private dispute between the plaintiff and the defendants
    evolved to include a public law dispute as to the validity of British Columbias
    mental health legislative scheme. The plaintiffs challenge is however misguided,
    as if defendants acted in accordance with the
Act
, in good faith and
    for no improper purpose they would not be held liable in damages even if the
Act
were subsequently held invalid. [
Schachter v. Canada
, [1992]
    2 S.C.R. 679 at 719-20;
Mackin v. New Brunswick (Minister of Finance)
,
    [2002] 1 S.C.R. 405 at ¶78-81;
Guimond v. Quebec (Attorney General)
,
    [1996] 3 S.C.R. 347 at ¶18-19;
Quebec (Human Rights Commission) v. City
    of Montreal
, [2004] 1 S.C.R. 789]

The
    constitutional challenge need not therefore be considered when the purpose
    for it being raised is to obtain damages, as at best it would result in a
    bare declaration of invalidity.

[56]

The trial judge further determined that Mr. Mullins lacked standing
    to litigate a constitutional challenge to the
Act
because, as
    a person who denies he suffered from a mental illness or disorder for the
    purposes of the
Act
, he cannot litigate the
Charter
rights of others who do suffer from mental disorders (paras. 201, 203-205).

[57]

The trial judge then considered whether Mr. Mullins satisfied
    the test for public interest standing. He found that Mr. Mullins did
    not meet the third criterion delineated in
Canadian Council of Churches
    v. Canada (Minister of Employment and Immigration)
, [1992] 1 S.C.R.
    236, that there was no other reasonable and effective way to bring the issues
    before the court (at 253). The trial judge found that anyone who actually
    does suffer from a mental disorder or mental illness pursuant to the
Act
was clearly in a position to bring the challenge (para. 208).

1.         Standing

[58]

Since the enactment of the
Charter
, the standing of an
    individual to challenge the constitutionality of laws is grounded in s. 52(1)
    of the
Constitution Act, 1982
, which provides:

The
    Constitution of Canada is the supreme law of Canada, and any law that is inconsistent
    with the provisions of the Constitution is, to the extent of the inconsistency,
    of no force and effect.

[59]

Prior to 1982, the Supreme Court of Canada had expanded citizens ability
    to challenge the constitutionality of laws by holding that courts have discretion
    to grant standing when a litigant is not directly affected by an impugned
    law. After 1982, those directly affected by an impugned law have standing
    as of right under s. 52(1), and standing may also be granted on a discretionary
    basis, under the heading of public interest standing (Kent Roach,
Constitutional
    Remedies in Canada
, (2006) Canada Law Group (looseleaf) at p. 5-2).

[60]

In Mr. Mullins case, I agree with the conclusion of the trial
    judge that Mr. Mullins failed to establish that he has direct interest
    standing or public interest standing. I come to this conclusion as a result
    of the manner in which Mr. Mullins has pleaded his case, and how he has
    approached the issues surrounding mental health.

[61]

The essential logical difficulty in Mr. Mullins argument is that
    his case was premised on the claim that, if the
Act
had been
    properly applied, he would never have been detained and treated. In other
    words, Mr. Mullins claim was that he was unlawfully assaulted and imprisoned
    and the actions against him were committed outside the legislation. As my
    reasons below illustrate, I accept that Mr. Mullins was suffering from
    mental illness within the meaning of the
Act
, but conclude that
    the respondents conduct was also in compliance with the
Act
.
    Thus, I have found that the respondents conducted themselves within the scope
    of the legislation.

[62]

Thus, what remains to be considered is Mr. Mullins alternative
    argument that the provisions of the
Act
are constitutionally
    invalid. However, as the trial judge observed at para. 204, there was no
    alternative pleading that if he is found to have been a mentally disordered
    person for the purposes of the
Act
, it is nonetheless invalid
    on constitutional grounds. The only alternative pleading the Court has been
    presented with, which the trial judge observed at para. 203, is Mr. Mullins
    pleading that if the provisions of the
Act
and
Regulations
are properly construed in his case (as a person who is not mentally
    disordered), then they are as a consequence constitutionally invalid.

[63]

The essential logical difficulty with this argument, as observed by
    the trial judge at para. 205, is that Mr. Mullins seeks to challenge
    the
Act
, if it authorizes the committal and treatment of persons
    who do not suffer from mental disorders. This is legally problematic because,
    in essence, Mr. Mullins is seeking to litigate the
Charter
rights of others. Canadian courts have recognized in other situations that
    the
Charter

rights Mr. Mullins seeks to litigate are personal
    rights, that s. 24(1) provides a remedy for an individual, and that the
    power to litigate such rights generally resides in the person whose rights
    have been infringed (
Stinson Estate v. British Columbia
,
1999 BCCA 761, 70 B.C.L.R. (3d) 233, leave to appeal to S.C.C. refused 27849
    (November 9, 2000);
Christian Labour Assn. v. British Columbia (Transportation
    Financing Authority)
,
2001 BCCA 437, 91 B.C.L.R. (3d) 197;
604598 Saskatchewan Ltd. (c.o.b. Great Canadian Superbar) v. Saskatchewan
    (Liquor and Gaming Licensing Commission)
(1998), 163 Sask. R. 104,
    157 D.L.R. (4
th
) 82, leave to appeal to S.C.C. refused 26566 (October
    1, 1998);
PSC Industrial Services Canada Inc. v. Ontario (Ministry of
    Environment)
(2005)
,
202 O.A.C. 93, 258 D.L.R. (4th) 320;
R.
    v. Rahey
, [1987] 1 S.C.R. 588 at 619 (per Wilson J.)).

[64]

Most significantly, it cannot be overemphasized that Mr. Mullins
    staunchly denies ever having suffered from a mental disorder and seeks to
    firmly distance himself from those members of society whom he refers to as
    lunatics. This obviously explains why he was incapable of accepting the
    premise that the other alternative pleading would have required. Nonetheless,
    it establishes, in my view, that Mr. Mullins does indeed lack direct
    standing and is, as the trial judge found, not the appropriate litigant to
    mount a public interest challenge against the constitutionality of the
Act
on behalf of those who do suffer from mental illness. More specifically, I
    agree with the trial judges conclusion that Mr. Mullins has failed to
    demonstrate his challenge meets the third requirement as outlined in
Canadian
    Council of Churches
, since there are other effective ways to bring
    the issues before the court.

[65]

Furthermore, Mr. Mullins challenge must fail on other grounds
    as well. Mr. Mullins failed to bring any evidence before the court in
    regards to his constitutional

challenge. More specifically, he claims
    to be challenging the legislation on behalf of individuals who do not suffer
    from mental disorders. As my reasons below will demonstrate, I am in agreement
    with the trial judge that Mr. Mullins is not part of that group of individuals.
    Since Mr. Mullins own factual circumstances do not appear to address
    the circumstances of persons not suffering from mental disorders, and he did
    not lead any evidence in regards to others who are effected by the legislation
    and do not suffer from mental disorders, there is no evidence before the court
    on which it could make the determination that Mr. Mullins seeks.

[66]

I would therefore not accede to the submission that the trial judge
    erred in his holding that Mr. Mullins lacked standing to litigate the
    constitutional issues.

2.         Constitutional Issues: Section

7

[67]

Mr. Mullins arguments at trial and on appeal concerning the constitutional
    and
Charter
issues were difficult to follow, principally because
    he dealt with them indiscriminately.

[68]

The trial judge examined in detail Mr. Mullins submissions that
    his
Charter
rights had been breached. Ultimately, the trial
    judge concluded that, although Mr. Mullins liberty was clearly curtailed,
    it was incumbent on Mr. Mullins to establish that the deprivation was
    contrary to the principles of fundamental justice, citing
R. v. Beare
,
    [1988] 2 S.C.R. 387 at para. 401.

[69]

Mr. Mullins alleges that the trial judge erred in failing to find
    that his rights guaranteed pursuant to ss. 7, 8, 9, 10(b) and 12 of the
Charter
were unjustifiably infringed by operation of the
Act
on the grounds that he was:

(a)
    deprived of his right to counsel (s. 10(b));

(b)        subjected to unreasonable search and seizure,
    and arbitrary detention (ss. 8 and 9);

(c)        subject to cruel and unusual punishment (s. 12);

(d)        involuntarily committed and treated under
    an enactment, the provisions of which are unconstitutionally vague (s. 7).

[70]

The trial judge, properly in my view, considered Mr. Mullins
    challenges as if they were violations of s. 7 because that section is
    of broad application and encompasses each of the alleged violations. (para.
    211)

(a)          Right
    to Counsel

[71]

Contrary to Mr. Mullins submission, the trial judge did find
    that he had been denied his right to counsel.

[72]

The
Mental Health Regulation
in effect at the time provided:

6(2)
    If a person is involuntarily admitted to and detained in a facility under
    section 22, 27, 28 or 29(1) to (5) of the Act or is transferred under section
    35 of the Act, the director or officer in charge of the facility must, immediately
    on admission or transfer or as soon as the person is capable of comprehension,
    inform the person of

(a)  the
    reasons for detention,

(b)  the
    persons right to retain and instruct counsel without delay,

(c)  the
    persons right to have the validity of the detention determined by way of
    habeas corpus, and

(d)  if
    the person is detained under section 22(1) or 29(4) of the Act, the persons
    right to a hearing under section 25(1) of the Act and to apply to the Supreme
    Court under section 33 (2) of the Act.

[73]

As I have noted, Mr. Mullins demanded to see a lawyer immediately
    after he was detained by the security staff. The denial of his right to retain
    and instruct counsel was arguably a breach of Mr. Mullins s. 10(b)
Charter
right. The trial judge noted that an inadvertent mitigating
    factor in respect of the breach of the
Regulation
and Mr. Mullins
    s. 10(b)
Charter
right was that Mr. Mullins parents
    were notified and his father, a lawyer, visited him within four hours of his
    confinement.

[74]

The point is that the denial of Mr. Mullins right to counsel
    was not, as Mr. Mullins argued, authorized by the
Act
.
    Thus the
Act
itself did not violate Mr. Mullins constitutional
    right. Furthermore, even though the denial of the right to counsel was action
    done outside the
Act
, and assuming for the purpose of argument
    that the
Charter
applied to individual staff members who denied
    Mr. Mullins his s. 10(b) rights, the fact that a lawyer arrived
    within four hours demonstrates that any damage suffered as a result was minimal.
    The thrust of Mr. Mullins argument was that he would not have done anything
    differently had a lawyer been called immediately at the time of his detention;
    but rather, the lawyer may have been able to persuade others to act differently.
    However, there was no evidence to support that contention.

(b)          Unreasonable
    Search and Seizure

[75]

Mr. Mullins submission that he was subjected to unreasonable search
    and seizure was not supported by any argument as to why his involuntary committal
    failed to accord with the principles of fundamental justice. I would not accede
    to the submission that the trial judge erred in dismissing Mr. Mullins
    claim in this respect.

(c)          Cruel
    and Unusual Punishment

[76]

Mr. Mullins objected to the quiet room as cruel and described
    his time there as solitary confinement. The trial judge found that Mr. Mullins
    was not subjected to punishment at all because the intention was to aid him.
    I respectfully agree with that finding and note that the
Act
does not authorize any specific treatment or accommodation. Those matters
    are decided by physicians, hospital boards and hospital staff.

(d)          Void
    for Vagueness

[77]

Mr. Mullins argued that the words used in the
Act
are unconstitutionally vague. However, Mr. Mullins did not present any
    evidence in support of the allegation and did not identify words or phrases
    that were so vague as to be unconstitutional.

[78]

In my opinion, Mr. Mullins failed at trial and on appeal to establish
    that the
Act
was so unintelligible as to render it incapable
    of an adequate basis for legal debate:
R. v. Nova Scotia Pharmaceutical
    Society
, [1992] 2 S.C.R. 606. Furthermore, the issue of the constitutional
    invalidity of the
Act
on the ground of vagueness was thoroughly
    examined and rejected in
McCorkell v. Riverview Hospital (Director)
(1993), 81 B.C.L.R. (2d) 273, 104 D.L.R. (4th) 391 (B.C.S.C.).

[79]

In my view, Mr. Mullins has failed to demonstrate any reviewable
    error by the trial judge on the question of whether his s. 7 right to
    liberty was infringed in a manner that does not accord with the principles
    of fundamental justice.

3.         Health
    Care (Consent) and Care Facility (Admission) Act as a Violation of s. 15
    of the Charter

[80]

Mr. Mullins entire submission on the issue of his s. 15
Charter

challenge is stated as follows in his factum:

131.
    At common law and by virtue of the
Health Care (Consent) and Care Facility
    (Admission) Act
, the (
HCCA
),  everyone has the right
    to refuse treatment even if, in doing so, he might die. The Appellant in his
    Notes expressly stated he would not accept detention in the hospital or medication
    without being fully informed and consenting.

132.
    However, the
HCCA
purports specifically to exclude this right
    for persons covered by the
MHA
.

133.
    Such exclusion is clearly discrimination on the ground of mental or physical
    disability contrary to
Charter
s. 15.

[81]

It appears that Mr. Mullins takes issue with the fact that by
    virtue of s. 2 of the
HCCA,
persons admitted and treated
    under s. 22 of the
Mental Health Act
are exempt from

the consent rights conferred on adults by the
HCCA
.

[82]

At trial, Mr. Mullins called no evidence to support his submissions
    on this issue or to refute the substantial body of evidence tendered by the
    Attorney General and the intervenor, British Columbia Schizophrenia Society.

[83]

The trial judge made no specific finding in respect of Mr. Mullins
    s. 15
Charter
challenge.

[84]

Given my conclusion that the trial judge did not err in refusing Mr. Mullins
    standing, it is not necessary to address this issue. In my view, however,
    it is simply not enough for a litigant who makes a claim such as this to raise
    a bare allegation, call no evidence to support it, and then expect that the
    court will devise arguments on his behalf and decide the issue.

[85]

To establish a violation of s. 15(1) of the
Charter
,
    Mr. Mullins is obliged to do more than simply identify a distinction
    in law between two or more groups in society. While it is necessary for Mr. Mullins
    to identify the existence of differential treatment and the presence of enumerated
    or analogous grounds, he is also obligated to show that such a distinction
    is discriminatory within the meaning of the equality guarantee:
Law
    v. Canada (Minister of Employment and Immigration)
, [1999] 1 S.C.R.
    497 at para. 88. Using contextual factors as outlined in
Law
,
    Mr. Mullins was required to address the following question:

Does
    the differential treatment discriminate, by imposing a burden upon or withholding
    a benefit from the claimant
in a manner which reflects the stereotypical
    application of presumed group or personal characteristics
, or which otherwise
    has the effect of perpetuating or promoting the view that the individual is
    less capable or worthy of recognition or value as a human being or as a member
    of Canadian society, equally deserving of concern, respect, and consideration?

[Emphasis added]

Mr. Mullins
    did not address the question by submissions or evidence and thus, in my opinion,
    the argument must fail.

4.         Damages for Breach of Charter Rights

[86]

Mr. Mullins submitted that his rights under the
Charter
were denied and he should be compensated for those constitutional offences
    in addition to any damages awarded for other common law and statutory wrongful
    acts and omissions.

[87]

Since I have concluded that Mr. Mullins has not established that
    any claimed
Charter
rights were infringed in a manner that does
    not accord with the principles of fundamental justice, it is not necessary
    to discuss this issue.

[88]

It is clear, however, that an action for damages under the general
    law of civil damages will not generally lie against the government for damages
    arising from the enactment or enforcement of laws subsequently determined
    to be unconstitutional:
Guimond v. Quebec (Attorney General)
,
    [1996] 3 S.C.R. 347. Thus, even if Mr. Mullins had succeeded in his constitutional
    challenge, damages would not be awarded, provided the conduct was not clearly
    wrong, in bad faith or an abuse of power:
Mackin v. New Brunswick (Minister
    of Finance)
, 2002 SCC 13,
[2002] 1 S.C.R.
    405
at para. 79.

[89]

It follows that for all the above reasons, I would not give effect
    to the constitutional issues raised on appeal.

B.        WHETHER MR. MULLINS WAS A MENTALLY ILL
    PERSON

[90]

It is clear from both written and oral submissions on appeal that this
    is perhaps the most important issue from Mr. Mullins perspective. In
    his factum, Mr. Mullins stated that the trial judges findings were not
    only demonstrably in error but also they brand the Appellant forever in the
    eyes of the public as a certified lunatic.

[91]

It is important to note here the role of the Court with respect to
    making a medical diagnosis. As succinctly and correctly stated by the
    trial judge at para. 123, [t]he Court is not in a position to diagnose the
    plaintiff. That is a medical mental health issue that must be based on the
    evidence of persons of expertise.

[92]

I am unable to find that the trial judge erred in holding that Mr. Mullins
    was a mentally ill person under the
Act
. This was a central
    issue in the case and is, without question, a finding of fact. The trial judges
    finding was based on the evidence of all of the physicians who testified.
    For example, Dr. Duke, the psychiatrist who replaced Dr. Levy, was
    called to give evidence for Mr. Mullins at trial. She testified, In
    my assessment, Stephens symptoms were of the severity when he was admitted
    that he would be manic. Dr. Long, the psychiatrist who treated Mr. Mullins
    after his discharge from VGH diagnosed him as suffering from bi-polar disorder
    and described him as desperately ill. Dr. Long emphasized that Mr. Mullins
    had poor insight into his illness. Dr. Long further testified that, as
    a result of the treatment Mr. Mullins received in hospital, his condition
    improved. However, the weight of the evidence is that there is no cure for
    bi-polar disorder and that, at least currently, there is no effective treatment
    for the disease other than medication.

[93]

The totality of the evidence on this critical issue more than amply
    established that Mr. Mullins suffered from a disorder of the mind that
    seriously impaired his ability to react appropriately to his environment or
    to associate with others and that required medical treatment, supervision,
    and control for his own protection or the protection of others.

[94]

The only evidence that Mr. Mullins was not mentally ill came from
    Mr. Mullins himself.

[95]

There can be no doubt that Mr. Mullins sincerely believes that
    he is not mentally ill and fervently wishes to be absolved from what he describes
    as the stigma of lunacy. However, the weight of the evidence supports the
    trial judges finding that, at least at the time in question, Mr. Mullins
    was mentally disordered.

C.
Cross-Appeal of the Respondent Doctors

1.         The Meaning of Examination

[96]

Central to the trial judges finding of liability against the doctors
    was his finding that Dr. Mercier did not conduct an examination of
    Mr. Mullins before signing the medical certificate. Section 22(2) of
    the
Act
requires that [e]ach medical certificate must be completed
    and signed by a physician  who has examined the person whose admission is
    requested.

[97]

As I have noted, examination is not defined in the
Act
.
    It is thus distinguishable from the case provided to us by Mr. Mullins,
Schmidt v. Katz
(1954), 13 W.W.R. 654 (Sask. Q.B.), which considered
    the provision in Saskatchewans
The Mental Hygiene Act, 1950
,
    S.S. 1950, c. 74, that required that every medical certificate shall
    state that the physician has
personally examined
the patient (s. 12(2),
    emphasis added).

[98]

It is interesting to note that the amended
Act
does not
    specifically provide for a personal examination, and in reviewing the status
    of a person detained under s. 22, s. 24(2.1) states that such an
    examination must include:

(a)
    consideration of all reasonably available evidence concerning the patients
    history of mental disorder including

(i)
    hospitalization for treatment, and

(ii)
    compliance with treatment plans following hospitalization, and

(b)
    an assessment of whether there is a significant risk that the patient, if
    discharged, will as a result of mental disorder fail to follow the treatment
    plan the director or physician considers necessary to minimize the possibility
    that the patient will again be detained under section 22.

[99]

The finding that Dr. Mercier did not conduct an examination is
    a finding of mixed fact and law. The respondent doctors do not challenge the
    trial judges findings as to what Dr. Mercier did or did not do as matters
    of fact. The respondent doctors do however challenge the trial judges interpretation
    of the word examination. It is a term used in the
Act
and
    its interpretation is properly a question of law.

[100]

As noted above, the trial judge, at para. 83 found that the opinion
    that a person is certifiable will require review and consideration of available
    medical history, information on patient interview and personal examination.

[101]

I take from those remarks that the trial judge construed examination
    to require a personal interview of the patient. In ordinary circumstances,
    one cannot quarrel with the common sense proposition underlying that construction.
    It would be rather odd if patients were admitted to hospital without first
    being examined as to their need for admission.

[102]

However, as the respondent doctors submit, a voluntary and cooperative
    interview with a mentally ill person requiring psychiatric care will not always
    be possible and attempting one will not always be safe.

[103]

For example, Dr. Long testified that it is not always possible
    to conduct an examination before signing the medical certificate. He testified:

Q
            Now, you have had occasion in your years as a psychiatrist to certify
    patients, have you?

A
             That is correct, my lord.

Q
            When you would have an examination, would you conduct an examination
    of the patient before signing a certificate?

A
             Not always, my lord. In an emergency ward, a patient hitting his
    head against the wall, et cetera, often examination at that point is impossible.
    We go by the behaviour. We quickly medicate the patient. Yes, medicate. And
    the paperwork may often follow after the patients immediate threat to harming
    themselves or others is contained medically. Once the medical -- Once the
    patients well-being is secured, we go and do the paperwork.

Q
            So --

A
             So it is not always legalistic, that we have to complete the half-hour
    paperwork before we start treating patients; well often do it the other way
    around. But, my lord, in the emergency ward, people are hitting their heads
    against concrete walls. Somebody has to do something quick. We cannot wait
    half an hour until all the paperwork is done.

[104]

The unchallenged expert medical evidence on the point came from the
    defendant doctors expert witness Dr. Remick, a psychiatrist:

Q
            Now, my friend asked you a bit about evaluations of patients, and
    you talked about the timing of interviews. Are there times or are there patients
    who are unable to be interviewed because of their behaviour?

A
             Yes.

Q
            And in those cases, do you still certify the patient on occasion?

A
             Yes. On occasion you would certify the patient.

Q
            And where do you look for your information in such cases?

A
             Youd look for what we call collateral information. It would be information
    obtained by other doctors who perhaps saw the patient before myself; any police
    report, if were talking about an emergency situation; any information that
    I -- one can get from calling up family members or other doctors who have
    treated that person. And you put all that together to make your judgment.

Q
    And are there some patients who youre considering for certification who are
    becoming progressively more agitated or escalating in their behaviour?

A
             Yes, that is the case.

Q
            And in those cases, is a continued or a second interview a good idea?

A
             Yes, it is.

Q
            If the patient is -- is escalating to the point where he or she might
    become violent, is it a good idea to continue with that interview?

A
    Is it a good idea to continue --

Q
            Yes.

A
             -- if the patient is escalating or is getting violent? No, it is
    not.

Q
            All right. And maybe I misunderstood your earlier answer. If youve
    got -- If there is a patient who is reported to be escalating in his behaviour,
    and if you have information about that patient already, and you form the view
    that that -- that a further interview would be a bad idea, is it your experience
    that in those cases a certificate may be appropriate?

A
    It would be appropriate. And indeed, further -- if were talking about a manic
    state, and if you mean by escalation sort of a patient is getting more overactive,
    more irritable, talking even faster, it would be a very bad idea to continue
    the interview. Because all thats going to do is escalate that person further.

[105]

Definitions provided in medical dictionaries indicate that examination
    is a general term that refers to an investigation undertaken by a physician,
    and that the term is usually qualified by reference to a specific type of
    examination. For instance, in
Stedmans Medical Dictionary
, examination
    is defined as [a]ny investigation or inspection made for the purpose of diagnosis;
    usually qualified by the method used (Maureen Barlow Pugh et al., eds.,
Stedmans
    Medical Dictionary
, 27th ed. (Baltimore: Lippincott Williams & Wilkins,
    2000)).
Dorlands Illustrated Medical Dictionary
provides a definition
    that suggests the term is a general one. Examination is defined as an:

Inspection,
    palpation, auscultation, percussion or other means of investigation especially
    for diagnosing disease, qualified according to method employed as physical
    examination, radiologic examination, diagnostic imaging examination, or cystoscopic
    examination.

(Douglas M. Anderson, ed.,
Dorlands Illustrated Medical
    Dictionary
, 28th ed. (Philadelphia: W.B. Saunders Company, 1994))

Definitions
    of a similar nature can be found in other relevant sources, although they
    are not strictly medical in nature. For instance,
The Dictionary of Canadian
    Law
defines medical examination as follows: Includes a mental examination,
    a physical examination and medical assessment of records respecting a person
    (
The Dictionary of Canadian Law
,

3d. ed., s.v. medical examination).
    In
The Oxford English Dictionary
, the definition of examination includes,
    [t]he action of investigating the nature, qualities, or condition of any
    object by inspection or experiment; minute inspection, scrutiny, and [t]he
    action or process of searching or inquiring into (facts, opinions, statements,
    etc.); investigation, scrutiny (
The Oxford English Dictionary
, 2d.
    ed. s.v. examination).

[106]

The purpose of the
Act
was found to be manifestly plain
    in
McCorkell v. Riverview Hospital
, where Donald J. (as he then
    was) stated it to be the treatment of the mentally disordered who need protection
    and care in a provincial psychiatric hospital. Having regard to the views
    of the physicians, the purpose of the
Act
, and the interpretation
    of the word in its ordinary usage in the medical context, in my opinion the
    term examination must be given a broad interpretation so as to be applicable
    in the myriad of circumstances that confront physicians called upon to make
    the serious decision to involuntarily commit persons to a psychiatric facility.
    Examination, in this context, must mean observing the person, reviewing
    the patients chart (if there is one), reviewing the available history and
    collateral information, and where possible (in the sense that the person complies)
    and necessary (in the sense that the information to be gained is not available
    from other sources) conducting a personal interview with the person to be
    admitted.

[107]

No one suggests that the physicians examination be treated other than
    with utmost seriousness. The decision to certify obviously has profound implications
    for the liberty of persons who may be held against their will for significant
    periods of time.

[108]

However, the physicians decision is ultimately a question of medical
    judgment. Once the physician has gathered sufficiently reliable information
    to make the diagnosis that the person is mentally disordered and in need of
    treatment and protection, then a court ought not lightly interfere with that
    decision provided it is made in good faith and with reasonable care.

[109]

It is perhaps in recognition of the multiplicity of situations that
    may arise in the mental health context, and the very nature of the way mentally
    ill persons present that lead the legislature not to define the term examination
    in the
Act
. What is plain, is that there must be sufficient
    reliable information to justify the denial of a persons liberty.

[110]

In my opinion, the trial judge erred in law in narrowly construing
    the word examination as it is used in the
Act
by necessitating
    a personal interview of the person to be admitted in all cases.

2.         The Liability of Dr. Mercier

[111]

The trial judge found that before Dr. Mercier completed her medical
    certificate she observed Mr. Mullins on two occasions  once when she
    met him with Dr. McKnight, and again when she escorted him to the interview
    room on his return from the charity run. The trial judge did not note, but
    it was Dr. Merciers evidence, that when he was away from the hospital,
    she had read Mr. Mullins handwritten notes which, together with her
    other observations, led her to form the opinion that he had a manic depressive
    disorder. Dr. Mercier, as the trial judge observed, had reviewed Mr. Mullins
    chart and had been informed by Dr. Materi that Mr. Mullins was escalating.
    These facts are inconsistent with the trial judges ultimate conclusion at
    para. 90 of his reasons that Dr. Mercier did not see, interview or examine
    the plaintiff before signing the certificate. Dr. Mercier decided to
    rely upon the opinion of Dr. Materi and in doing so completely abrogated
    her duty under the
Act
.

[112]

In my view, applying the broader interpretation of examination discussed
    above, Dr. Mercier conducted an examination within the meaning of the
Act
. It is clear that she had all the information she needed
    to make the diagnosis that Mr. Mullins was mentally disordered. Her reasons
    are recorded on the medical certificate: Patient has pressured speech, flight
    of ideas, no insight + is clearly hypomanic. His behaviour is escalating and
    he is at significant risk of causing harm to himself.

[113]

Most significantly, Dr. Mercier had read Mr. Mullins handwritten
    notes which she testified displayed bizarre, rambling thoughts. Dr. Mercier
    was aware that Mr. Mullins was escalating which, as Dr. Remick
    testified and Dr. Mercier believed, meant that a further attempt at an
    interview could simply annoy Mr. Mullins or potentially result in an
    outburst or violent episode.

[114]

Dr. Mercier testified:

Q
            Now, what did you understand Dr. Materi to mean from the word
    escalating?

A
             Well, escalating is a term that we use when a patients behaviour
    is going from an acceptable level of behaviour up to an unacceptable level,
    which involves usually violence, either physical or verbal violence, and is
    -- when a patient is becoming unpredictable and potentially a danger to other
    people specifically, as well as to himself.

Q
            Now, at that point, were you prepared to sign a certificate under
    the Mental Health Act?

A
             Yes, I was.

Q
            And what information went into your decision to do that?

A
             I was not surprised that he was escalating. I think that is part
    of the process which I believe that Mr. Mullins was experiencing, the
    process of his mental disorder. I think it was a natural, inevitable thing
    to happen. The concerns that I had had up until that time remained exactly
    the same. I was very concerned about him leaving the hospital, and with the
    escalating behaviour I was basically put into a position of either bring him
    in or let him go. I was unhappy at 7:00 a.m. about him leaving the hospital.
    I certainly -- At the time that Dr. Materi came up to me some hours later,
    I was not happy about him having that opportunity to leave the hospital again,
    without a prolonged serious mental status examination.

Q
            And is that something you anticipated could take place in the PAU
    over time?

A
             Yes.

[115]

Given the circumstances extant in this case, and based on the interpretation
    of the term discussed above, I would find that Dr. Mercier conducted
    an examination within the meaning of the
Act
. Hence, the finding
    of liability against her cannot stand.

[116]

This conclusion affects the findings of liability in respect of Drs. Ganesan
    and Materi.

3.         The Liability of Dr. Ganesan

[117]

As I have noted, the trial judge held that Dr. Ganesan had conducted
    an examination within the meaning of the
Act
. He found fault
    in Dr. Ganesan failing to inquire as to the circumstances giving rise
    to Dr. Merciers certificate. With great respect to the trial judge,
    I have difficulty understanding why, if Dr. Ganesans certificate was
    valid, he can be said to have breached the standard of care required of him.
    The trial judge found fault on the assumption that, before signing his certificate,
    Dr. Ganesan should have satisfied himself that Dr. Merciers certificate
    was valid. On the trial judges view of the case, Dr. Ganesan would have
    then discovered that Dr. Mercier had not conducted an examination and
    would have concluded that her certificate was invalid.

[118]

With respect, I consider that in so finding, the trial judge erred.
    I come to this conclusion for three reasons.

[119]

First, since I have concluded that Dr. Merciers certificate was
    valid, having been signed after an examination of Mr. Mullins, the supposition
    inherent in the trial judges assumption falls away.

[120]

Second, the notion that the second physician to sign a medical certificate
    must investigate the circumstances giving rise to the first certificate is
    contrary to the scheme of the
Act
that aims at ensuring the
    complete independence and freedom from influence as between the two certifying
    physicians. This aim is apparent in s. 22(3) of the
Act
,
    which reads:

A
    physician is disqualified from giving a valid medical certificate under this
    section if the physician is

(a)  the
    person whose admission is requested,

(b)  engaged
    in the practice of medicine in partnership with the physician who completes
    the other certificate, or

(c)  a person
    employed as an assistant by a physician who completes either of the medical
    certificates in respect of the person whose admission is requested.

[121]

The trial judges finding that Dr. Ganesan should have done something
    more than satisfy himself as to the requirements of s. 22(2) imposes
    a standard that in many cases could not be met and which could result in delays
    and possible harm to the patient and third parties. Furthermore, it represents
    a fundamental misunderstanding of the physicians independent obligations
    in signing the medical certificate.

[122]

Third, the trial judge found that Dr. Levy was entitled to assume
    the certificates signed by Drs. Mercier and Ganesan were valid and he
    was entitled to rely on them without undertaking a review (para. 151). It
    is difficult to reconcile this with the findings in respect of Drs. Mercier
    and Ganesan.

[123]

Having found that Dr. Ganesan had examined Mr. Mullins within
    the meaning of the
Act
, there was no basis on which it could
    reasonably be said that Dr. Ganesan was negligent in failing to review
    the circumstances of Dr. Merciers certificate. That certificate was
    in Mr. Mullins chart at the time Dr. Ganesan was speaking with
    Dr. Materi.

[124]

Accordingly, I would find that the trial judge erred in law in finding
    that Dr. Ganesan was negligent in failing to review the circumstances
    surrounding Dr. Merciers certificate. Since both certificates were valid,
    it cannot be said that Mr. Mullins was involuntarily admitted to the
    PAU in a manner contrary to the
Act
.

[125]

In arriving at this conclusion, I have not ignored Mr. Mullins
    arguments that he was not admitted to the PAU; that the PAU was not a Provincial
    Mental Health Facility; and that there was no Director, or, if one existed,
    he or she was not present. In my opinion, the trial judges findings in respect
    of these issues was supported by the evidence and Mr. Mullins has not
    demonstrated palpable and overriding error in the trial judges factual findings
    and no error in his legal analysis.

4.         The Liability of Dr. Materi

[126]

The conclusion that the medical certificates were valid also affects
    the finding of fault with respect to Dr. Materi. As I have noted, the
    trial judge accepted that Dr. Materis diagnosis of mania was not unreasonable.
    He accepted that Dr. Materi was fully capable of recognizing pressured
    speech and flight of thought. The trial judge did not say that Dr. Materis
    concern that Mr. Mullins was escalating was unfounded.

[127]

The trial judges finding of fault with respect to Dr. Materi
    was essentially that Dr. Materi, confronted with a compliant patient
    who, in the trial judges view was unlikely to leave, should have arranged
    for an earlier interview by Dr. Ganesan. Implicit in this finding is
    the suggestion that Dr. Materi should not have alerted the security staff
    about the possibility of Mr. Mullins imminent certification.

[128]

There is nothing in the evidence or the findings of the trial judge
    to suggest that Dr. Materi was not acting in good faith. Dr. Materis
    evidence concerning the involvement of the security staff was:

Q
            Do voluntary patients sometimes leave the hospital without anybody
    knowing?

A
             Yes.

Q
            Now, what was your plan, again in that moment youve just left the
    interview, what was your plan for what was going to happen next and what steps
    you were going to take to provide Mr. Mullins with treatment?

A
             My plan was to talk to Dr. Mercier, who was the new emergency
    physician after Dr. McKnight, to talk to Dr. Ganesan, both of whom
    would be able to certify Mr. Mullins; to phone the collateral sources
    that Mr. Mullins had provided me with; and to arrange for Mr. Mullins
    admission to PAU.

Q
            Now, do you remember the order in which you did that?

A
             Somewhat.

Q
            Okay. Whats the first thing you think you did?

A
             The first thing I did, to my recollection, was to approach the security
    desk to let them know that Mr. Mullins was still in interview room 2
    and that he was going to be admitted, he did not yet know that yet, and that
    I would be returning, I was in the process of arranging for his admission
    and I would be returning. And to my recollection, the -- there was a security
    guard at the desk with whom I spoke who had said that they would have somebody
    stand -- stand near that room.

Q
            Now, let me ask you a bit about that. Did you tell the security guard
    that Mr. Mullins was certified?

A
             No.

Q
            Why did you want security to be -- or a security guard to be standing
    around or be aware of the situation?

A
             If we go back to the nursing notes, I think it was page B-35 you
    had said -- at 0815 it says Pt patient not at triage. Pt patient not
    in room which indicates to me that even the nurse did not know where the
    patient was, and I wanted to make sure that we -- we knew where Mr. Mullins
    was.

[129]

In cross-examination, Dr. Materi reiterated that one of her concerns
    was losing track of Mr. Mullins:

Q
            Now, you -- did you ask Brown to go to the interview room and make
    sure that Stephen Mullins didnt leave?

A
             I dont recall whether it was me who asked him to -- somebody to
    wait outside or whether it was he who offered it, but I do recall that the
    agreement was that somebody would wait outside the interview room to keep
    track of Mr. Mullins.

Q
            So when you left the security station, it was your understanding that
    someone would go there and prevent Stephen Mullins from leaving the hospital?

A
    I dont recall whether it was my exact expectation that someone would prevent
    him from leaving the hospital. I do recall that someone was going to be hovering
    around the area.

Q
            Wasnt it your expectation that whoever was hovering around the area
    would not permit him to leave the hospital if he tried to go?

A
             I dont think I had thought that far ahead. I was concerned primarily
    of Mr. Mullins wandering and us losing track of him like had happened
    before.

[130]

The trial judges findings in respect of this evidence are set out
    in paras. 159-160:

The security personnels involvement occurred as a result of the direction
    of the defendant Dr. Materi. She told the defendant Brown the plaintiff
    was in the interview room and that he was admitted to the PAU seclusion room
    and that he was not to leave the hospital. The defendant Brown understood
    the plaintiff was barricaded in the interview room and that he would not
    be happy about staying in the hospital.

The defendant Brown understood the plaintiff had been pinked, or perhaps
    was in the process of being pinked, a reference by reason of the colour
    of the form of the Certificate for Involuntary Admission under the
Act
.
    The defendant Dr. Materis recollection was that she advised the defendant
    Brown that the plaintiff was in the interview room, was going to be admitted,
    and she was arranging the admission and would be returning. Her evidence is
    that she did not say he had been certified and she had not really turned her
    mind to him leaving the hospital. Whatever the precise nature of the discussion
    between the defendant Dr. Materi and the defendant Brown I accept it
    was clear that the defendant Dr. Materi was directing that the plaintiff
    be detained until her return. Her direction was more than just a request that
    they stand by in case they would later be needed.

[131]

The trial judge essentially found that Dr. Materi should not have
    told the security staff that Mr. Mullins should not be allowed to leave
    the hospital because Mr. Mullins presented as completely co-operative
    and was, therefore, unlikely to leave.

[132]

In so doing, I consider that the trial judge erred in substituting
    his own view of Mr. Mullins mental condition and the potential ramifications
    on his behaviour for that of Dr. Materi. Dr. Materis judgment that
    Mr. Mullins was escalating and was in need of detention was made in
    the course of her 30 minute interview and with the benefit of having read
    Mr. Mullins handwritten notes. It was a complex medical judgment call.
    There was no evidence that her medical judgment fell below the reasonable
    standard of care.

[133]

As the Supreme Court of Canada stated in
Ter Nuezen v. Korn
,
    [1995] 3 S.C.R. 674 at para. 34, 127 D.L.R. (4th) 577 [quoting
Lapointe
    v. Hôpital Le Gardeur
, [1992] 1 S.C.R. 351, at 362-363]:

courts should be careful not to rely upon the perfect vision afforded by hindsight.
    In order to evaluate a particular exercise of judgment fairly, the doctors
    limited ability to foresee future events when determining a course of conduct
    must be borne in mind. Otherwise, the doctor will not be assessed according
    to the norms of the average doctor of reasonable ability in the same circumstances,
    but rather will be held accountable for mistakes that are apparent only after
    the fact.

[134]

In my opinion, there being no evidence that Dr. Materi was wrong
    in her medical conclusion that Mr. Mullins was escalating and needed
    to be detained, it would be unreasonable to find her liable for the subsequent
    actions of the security staff.

[135]

In the result, I would allow the respondent doctors cross-appeal and
    dismiss the action against them.

D.        The Cross-Appeal of the Security Staff and
    VGH

[136]

The essence of the trial judges finding of liability against the security
    staff is set out in para. 163 of his reasons which for convenience I reproduce
    here:

The
    evidence is that the security personnel act on the direction of doctors in
    restraining and detaining patients. They do not appear to question, seek verification,
    or exercise independent analysis in respect of implementation of involuntary
    admissions and detentions under the
Act
. That is what the defendant
    hospital wishes them to do and they must therefore stand fully responsible
    as employer for their conduct.

[137]

The hospital records may reasonably be described as alarmingly deficient
    in detail as to the sequence in which events took place in this case. It was
    thus impossible for the trial judge to determine with certainty whether Dr. Merciers
    certificate was signed prior to the actions taken by the security staff. It
    is clear that Dr. Ganesans certificate was not signed at that time because
    his diagnosis of Mr. Mullins was, at least in part, premised on his observations
    of Mr. Mullins distraught behaviour subsequent to being tackled and
    dragged to the quiet room.

[138]

The trial judge, correctly in my view, rejected the security staffs
    contention that they were entitled to the protection of s. 16(f) of the
Act
for transporting or taking charge of a person on the authority
    of properly completed medical certificates because, at the time in question,
    at best only Dr. Merciers certificate had been completed.

[139]

However, the security staff argued that, in the alternative, their
    actions were protected at common law, on the basis that the hospital and its
    employees had a duty to protect third parties from dangerous or violent patients
    who are in the process of being certified.

[140]

Section 22 (1) provides that:

On receiving
2 medical certificates completed by 2 physicians in
    accordance with subsection (2), the director of a Provincial mental health
    facility may admit a person to the facility and detain the person in it.

[Emphasis added]

[141]

At trial, the defendant doctors argued and the trial judge accepted
    that on receiving does not necessarily mean after and that it has a less
    temporal meaning that encompasses a meaning of simultaneously with or approximately
    simultaneous with. The trial judge cited s. 8 of the
Interpretation
    Act
, R.S.B.C. 1996, c. 238 at para. 76:

Every
    enactment must be construed as being remedial, and must be given such fair,
    large and liberal construction and interpretation as best ensures the attainment
    of its objects.

[142]

The trial judge then cited the helpful passage referred to earlier
    from the reasons of Donald J. in
McCorkell v. Riverview Hospital
at
    296:

The
    purpose of the
Act

is manifestly plain: the treatment of the
    mentally disordered who need protection and care in a provincial psychiatric
    hospital. Commenting on a similar statute for Prince Edward Island, McQuaid
    J., speaking for the Supreme Court of that province, in the case of
Re
    Jenkins

(1984), 5 D.L.R. (4th) 577 at pp. 589-590 said:

The thrust
    of the
Mental Health Act
, including its predecessors, has been the
    safety, support and succour of those who suffer from, or appear to suffer
    from, a debilitating mental disability or disorder and who, as a consequence,
    require hospitalization, whether voluntary or otherwise, for their own safety
    or the safety of others. In this context the word safety goes beyond mere
    protection from the infliction of physical injury.

[143]

Most significantly, the trial judge accepted the defendants fundamental
    proposition that a literal interpretation of the
Act
renders
    the statute absurd. He stated at para. 78:

I
    agree a liberal interpretation is required to prevent the absurd result of
    a race to the door competition between doctors filling in Certificates to
    detain and patients refusing to remain.

[144]

In this conclusion it appears that the trial judge accepted that, once
    the process of certification is underway, it is not in the interests of patients
    who require treatment, but who lack the insight to accept it, to leave the
    hospital before both physicians complete a certificate.

[145]

The trial judge nevertheless concluded that there was insufficient
    temporality in the actions of the security staff to permit application of
    a liberal interpretation of s. 22. He held at paras. 79-81:

I
    am of the view however the delay here was more than temporal. The certification
    process was far from complete.
There had been no examination by a psychiatrist
which presumably was the purpose of the plaintiffs referral to the PAU and
    Dr. McKnight  who had first examined the plaintiff and had already found
    he was not certifiable under the
Act
. Dr. Materi should in my
    view of the evidence also have been aware that there was
no indication
    Dr. Mercier had conducted an examination
in compliance with the
Act
.

I
    also accept that the common law doctrine of necessity in emergency situations
    could have application in certain circumstances. That would be particularly
    applicable in situations where it was necessary to protect the patient from
    harming himself or others. [
Conway v. Fleming
, [1996] O.J. No. 1242
    (Gen. Div.)]

I
    am not satisfied on the evidence there was an emergency situation here that
    could reasonably justify a modification of the requirement to detain only
    on receipt of two certificates.
There was no indication the plaintiff
    posed any threat to others and the threat of any harm to himself was not immediate
.
    The plaintiffs history had been one of complete co-operation and he was apparently
    at Dr. Materis request placidly waiting her return when he was arrested
    and detained. He was apparently not even asked if he would mind waiting a
    few minutes until a psychiatrist could see him.

[Emphasis added]

[146]

The trial judge thus rejected the argument of the security staff and
    hospital that they were absolved of liability on the basis that their conduct
    was required to fulfill a duty at common law to protect third parties from
    patients who require certification.

[147]

In
Conway v. Fleming
, [1996] O.J. No. 1242 (Ont. Div.
    Ct.) (QL) affd (1999) 43 O.R. (3d) 92, 173 D.L.R. (4
th
) 372 (Ont.
    C.A.), leave to appeal to S.C.C. refused 27519 (June 8, 2000), the plaintiff
    was a patient in a psychiatric ward pursuant to a Lieutenant Governors Warrant.
    An order was in place that authorized staff to medicate the plaintiff in certain
    circumstances. At one point the plaintiff became upset and threatening. He
    was locked up and medicated. He sued for damages.

[148]

Based on his findings of fact, the trial judge held that the injection
    was authorized by the terms of the Warrant of the Lieutenant-Governor. However,
    the trial judge went on to consider whether, in the alternative, the actions
    of the defendants would have been justified at common law. At para. 278, the
    trial judge held that at common law:

there was a right and a duty to restrain Conway when necessary to protect
    him, other patients, or others lawfully on the premises (staff or other patients)
    from harm and to prevent endangerment to the safe environment of the hospital
    or facility.

[149]

In
obiter
, the trial judge was satisfied a common law duty existed.
    At paras. 276-277, the trial judge briefly explained:

On
    the basis of the reasoning in the decisions of
Stewart v. Extendicare Limited
,
    [1986] 4 W.W.R. 559, and
Wellesley Hospital v. Lawson
(1977), 76 D.L.R.
    (3d) 688, and the very useful article by G. Robertson, Mental Disability
    and the Law in Canada (Toronto) Carswell, 1987, I am satisfied that there
    was authority for the injection at common law.

At
    p. 386, it was stated: Psychiatrists and other health care professionals
    involved in the care and treatment of a patient are under a legal duty to
    exercise reasonable care to ensure that the patient does not harm himself.
    Also at p. 389:

A psychiatric
    patient may pose a danger not only to himself but also to others in the hospital.
    The hospital must respond to that risk by providing and maintaining a reasonable
    level of supervision and security. That responsibility is not limited to the
    protection of patients. As an occupier of premises, a hospital is under a
    duty to take reasonable care for the safety of all persons who are lawfully
    on the premises.

[150]

The court in
Conway

relied on the decision of
    the Supreme Court of Canada in
Wellesley Hospital v. Lawson
,
    [1978] 1 S.C.R. 893, 76 D.L.R. (3d) 688 (cited to S.C.R.), a case regarding
    the liability of a hospital for personal injuries inflicted by a psychiatric
    patient on a non-psychiatric patient. The majority noted at 896 that the parties
    to the litigation agreed that:

[A]t
    common law a hospital, especially one providing treatment for mentally-ill
    persons, would be under a common law liability if by reason of its failure
    to provide adequate control and supervision injury occurred to third persons
    by reason of the conduct or behaviour of a patient.

[151]

The majority noted that the hospital owed an independent duty to supervise
    and keep under reasonable control patients who the hospital knows or ought
    to know have propensities to violent behaviour (at 899).

[152]

The trial judge found at para. 160 that Mr. Brown understood that
    Mr. Mullins had been pinked, or perhaps was in the process of being
    pinked, a reference by reason of the colour of the form of the Certificate
    for Involuntary Admission under the Act. Mr. Brown testified that he
    had the impression from his conversation that Mr. Mullins was a potential
    elopement risk and needed to be kept at the hospital and moved into seclusion.

[153]

However, in para. 162, the trial judge found that there was no evidence
    to suggest the security staff had any reason to believe Mr. Mullins was
    dangerous or violent, or had been told not to leave the hospital.

[154]

The difficulty posed by the second factual finding is that it ignores
    the implications of the first factual finding  the head of security in the
    PAU knew that Mr. Mullins was to be detained under the
Act
.
    Whether or not Mr. Brown knew that Mr. Mullins was dangerous or
    violent or had been told not to leave the hospital is, in my opinion, only
    marginally relevant. What is relevant is that, under the
Act
,
    Mr. Mullins detention was necessary for his own protection, which was
    supported by the uncontroverted medical evidence.

[155]

In my opinion, the conclusions that I have made in respect of the doctors
    cross-appeal affect the cross-appeal of the security staff and hospital. Chiefly,
    I have concluded that the trial judge erred by substituting his own view of
    Mr. Mullins mental state and the need to protect him for that of Dr. Materi
    and in finding that Dr. Mercier had not conducted an examination. Those
    legal errors, in my respectful opinion, render unsupportable the trial judges
    finding in paras. 78-79 of his reasons that the certification process
    was far from complete and therefore did not give rise to the race to the
    door.

[156]

Once it is established that Dr. Materis diagnosis was correct
    and Mr. Mullins was escalating and was in need of care, the process was
    underway for Mr. Mullins admission. Approximately 19 minutes passed
    between the time Dr. Materi spoke with Mr. Brown and the time Dr. Ganesan
    signed the second certificate. The conduct of the security staff, in the circumstances,
    occurred in the midst of the certification process. As the hospital and security
    staff contends, it is impractical to suggest that a psychiatrist can detain
    a patient but cannot enlist the assistance of security staff to effect the
    detention.

[157]

The trial judge appears also to have found fault for the security staff
    failing to ask to see the certificates before taking steps to detain Mr. Mullins.
    I accept the submission of the hospital and security staff that the burden
    of determining whether a person may be forcibly detained because of mental
    illness is uniquely placed on the medical profession. It is implicit in the
Act
that physicians, provided they are not disqualified by a
    conflict, are trusted to act knowledgeably and in the patients best interest.
    To require that certificates be verified by security staff undermines the
    intention of the
Act
, creates potential hazard to patients and
    others, and interferes with the privacy interests of patients.

[158]

It follows that, for all of the above reasons, I would allow the cross-appeal
    of the security staff and hospital.

E.
    The Remainder of the Issues on Appeal

[159]

It remains necessary to address certain aspects of Mr. Mullins
    appeal.

1.         The Liability of Dr. Levy

[160]

Mr. Mullins challenges the trial judges dismissal of the action
    against Dr. Levy. I can see no basis on which we could accede to Mr. Mullins
    arguments. The trial judge heard expert evidence from Dr. Remick that
    Dr. Levys care was reasonable. There was no evidence to the contrary.

[161]

Central to Mr. Mullins argument is the suggestion that Dr. Levy
    was obliged to review the circumstances of the completion of the certificates
    by Drs. Mercier and Ganesan. As I have concluded that such review is
    contrary to the intention of the
Act
, I would reject this argument.

[162]

Nor can I conclude that the trial judge erred in finding that Dr. Levy
    was entitled to the protection of s. 16 of the
Act
. Implicit
    in Mr. Mullins argument is that, in order to qualify for the protection
    afforded by s. 16, the certificates must be properly completed which
    Mr. Mullins submits must refer to the circumstances in which they were
    completed. In other words, Mr. Mullins argues that those relying on the
    certificates must be satisfied that they were obtained in circumstances that
    could not impugn their validity, i.e. were created in rigorous compliance
    with the
Act
.

[163]

I would reject that argument. Properly completed must refer to the
    certificates themselves, not the circumstances under which they were completed.
    The section aims to protect those persons who take charge of a person on
    the authority of properly completed medical certificates. So long as those
    persons act in good faith and with reasonable care and there are certificates
    which, on their face, are valid, then s. 16 applies. If the physician
    completing the certificate is negligent or acts in bad faith in completing
    the certificate he or she may be liable in damages. It does not render the
    certificate invalid for the purpose of others relying on it.

2.         The Liability of Nurse Farivar

[164]

Mr. Mullins contends that the trial judge erred in finding that
    Nurse Farivar signed a form of Consent to Treatment
pursuant to the provisions
    of the
Act
. Mr. Mullins argues that since there were
    not two valid certificates as mandated by s. 22, there was no authority
    under the
Act
permitting Nurse Farivar to sign the form.

[165]

For the reasons given above in the cross-appeals, I would reject Mr. Mullins
    argument.

V.         CONCLUSION

[166]

It follows that I would dismiss the action against all the defendants.
    It also follows that it is unnecessary to address the issues related to the
    quantum of damage, punitive damages, costs and Court Order interest, and the
    destruction of records.

[167]

I would dismiss the appeal, allow the cross-appeals, with costs of
    the trial and

appeals to the doctors, hospital, and security staff.
    The Attorney-General is entitled to his costs of the appeal if sought.

The Honourable Madam Justice Kirkpatrick

I
    agree:

The
    Honourable Mr. Justice Chiasson

I
    agree:

The
    Honourable Mr. Justice Bauman