CITATION:
Gligorevic v. McMaster, 2012 ONCA 115

DATE: 20120221

DOCKET: C53078

COURT OF APPEAL FOR ONTARIO

Laskin, Cronk and Blair JJ.A.

IN THE MATTER OF an application under subsection 32(1)
          of the
Health Care Consent Act, 1996
, S.O. 1996, c. 2, Schedule A, as
          amended.

BETWEEN

Zeljko Gligorevic

Applicant (Appellant)

and

Dr. Jeffry McMaster

Respondent (Respondent in Appeal)

and

Lisa McCullough

Intervenor

Zeljko Gligorevic, appearing in person

Mercedes Perez and Karen Steward, as
amicus curiae

Janice E. Blackburn and Ioana Bala, for the respondent

Heidi Rubin, for the intervenor

Heard: November 1, 2011

On appeal from the order of Justice
          W. Low of the Superior Court of Justice, dated November 26, 2010, dismissing
          an appeal from the order of the Consent and Capacity Board, dated September
          29, 2005.

CRONK J.A.:

I.         Introduction

[1]

The appellant, Zeljko Gligorevic, was detained at the Centre for
    Addiction and Mental Health (the Hospital) in Toronto by order of the Ontario
    Review Board (the ORB) following a verdict of not criminally responsible on
    account of mental disorder (NCR) at his criminal trial on charges of breaking
    and entering and arson.  After Mr. Gligorevic refused antipsychotic medication
    recommended for treatment of his schizophrenia, a Hospital physician found him
    incapable with respect to treatment.  At a subsequent review hearing, the
    Consent and Capacity Board (the Board) confirmed this incapacity finding.

[2]

Mr. Gligorevic appealed the Boards decision to the Superior
    Court of Justice.  He argued that the assistance of counsel at the review hearing
    was ineffective, thereby causing a miscarriage of justice by denying him
    adjudicative fairness, by yielding a treatment incapacity ruling that was unreliable,
    and by violating his s. 7 and, in the alternative, s. 15(1)
Charter
rights.  He also maintained that the Board erred in confirming that he was
    incapable by relying on a concession of incapacity by counsel appointed to
    represent him at the hearing.  The Superior Court Justice dismissed the appeal.

[3]

Mr. Gligorevic further appeals.  For the reasons that follow, I
    would allow the appeal.

II.        Statutory Test for
    Treatment Capacity

[4]

The issues on appeal arise in the context of a patients legal
    right to determine his or her own medical treatment.  In Ontario, by operation of
    s. 10(1) of the
Health Care Consent Act, 1996
, S.O. 1990, c. 2, Sch. A.
    (the Act), a health practitioner is precluded from administering a proposed treatment
    to a patient, and is required to take reasonable steps to ensure that the
    treatment is not administered, unless consent to the treatment is first
    obtained (1) from the patient, where the patient is capable; or (2) from the patients
    substitute decision-maker, where the patient is incapable.

[5]

Section 4(1) of the Act establishes two criteria for capacity.  To
    be capable with respect to treatment, a person must be able to understand
    the information that is relevant to making a decision about the treatment and to
    appreciate the reasonably foreseeable consequences of a decision or lack of
    decision.  Section 4(2) provides that a person is presumed to be capable with
    respect to treatment.  This presumption of capacity is displaced only if one or
    both of the s. 4(1) criteria for capacity are not met.

[6]

In
Starson v. Swayze
, 2003 SCC 32, [2003] 1 S.C.R. 722, at
    para. 78, Major J., writing for the majority, explained the two criteria for capacity
    in this fashion:

First, a person must be able to understand the
    information that is relevant to making a treatment decision.  This requires the
    cognitive ability to process, retain and understand the relevant information ...
    Second, a person must be able to appreciate the reasonably foreseeable
    consequences of the decision or lack of one.  This requires the patient to be
    able to apply the relevant information to his or her circumstances, and to be
    able to weigh the foreseeable risks and benefits of a decision or lack thereof.

[7]

In this case, as I will discuss, the Board rested its incapacity
    finding on the appreciation criterion for capacity (the ability to appreciate
    the reasonably foreseeable consequences of a decision or lack of decision
    regarding treatment).  In
Starson
, Major J. emphasized two points
    concerning this part of the statutory test for capacity.  First, at para. 79, he
    confirmed that a patient need not agree with the diagnosis of his or her
    attending physician in order to be able to apply the information relevant to a
    treatment decision to his or her own circumstances.  However, if it is
    established that the patient in fact has a mental condition, the patient must
    be able to recognize the possibility that he is affected by that condition.

[8]

Second, Major J. explained, at para. 80, that while the Act
    requires a patient to have the
ability
to appreciate the consequences
    of a [treatment] decision, it does not require
actual
appreciation of
    those consequences (emphasis in original).  Thus, if the patient has an
    appreciation of the parameters of the treatment decision at issue (the nature
    and purpose of the proposed treatment, the foreseeable benefits and risks of
    treatment, the alternative courses of action available, and the expected
    consequences of not having the treatment), he or she has the ability to
    appreciate the decision made, even if the patient disagrees with his or her physicians
    treatment recommendation.

[9]

Against the backdrop of this statutory test for treatment
    capacity, I turn to the facts relevant to the disposition of this appeal.

III.      Facts

[10]

Mr. Gligorevic
immigrated to Canada from
    Yugoslavia with his family in 1999.  He is approximately 46 years old and
    Serbian is his native language.  Although he has some skills in the English
    language, they appear to be limited.

[11]

On arrival in Canada, Mr. Gligorevic worked at a variety of
    jobs.  He had no criminal record and, apparently, no documented history of
    mental illness.  In 2004, he was charged with breaking and entering and arson, underwent
    a pre-trial psychiatric assessment at the Hospital and was found fit to stand
    trial.  On November 29, 2004, a verdict of NCR was entered in respect of both
    charges.

[1]

[12]

After a hearing, the ORB found that Mr. Gligorevic posed a
    significant threat to the safety of the public.  It ordered him detained at the
    minimum secure unit of the Hospital and prohibited him from having any contact
    or communication with his wife, their children and the arson victim and his
    immediate family members.  Mr. Gligorevic remained in detention at the Hospital
    at the time of the Board capacity hearing.

(1)       Diagnosis
    and Treatment

[13]

At the Hospital, Mr. Gligorevic was initially diagnosed with
    delusional disorder, mixed type, with symptoms of grandiose, jealous and
    persecutory delusions.  His diagnosis was later revised to schizophrenia, treatment
    with antipsychotic medication was prescribed and his transfer to a secure
    observation and treatment unit at the Hospital was ordered.

[14]

Initially, Mr. Gligorevic consented to treatment with antipsychotic
    medication.  Contemporaneous clinical observations of his progress indicated
    that while his overall functioning and behaviour improved with antipsychotic
    medication, his symptoms of ongoing psychosis, including delusions, continued.
    In June 2005, Mr. Gligorevic withdrew his consent, claiming that the medication
    was not helping him and that he was not suffering from a mental disorder.

[15]

On August 16, 2005, a Hospital physician found Mr. Gligorevic incapable
    with respect to treatment with antipsychotic medication.  Thereafter, the
    Hospital obtained substitute consent from Mr. Gligorevics mother to administer
    the medication to Mr. Gligorevic.

[16]

Mr. Gligorevic, who continued to oppose this form of treatment, applied
    under s. 32(1) of the Act for review of his incapacity finding by the
    Board.  In his application, he listed Dragi Zekavica, a Serbian-speaking lawyer
    who had represented him before the ORB, as his counsel.  The filing of this
    application precluded the administration of antipsychotic medication pending
    the final disposition of the application and any appeal therefrom, absent
    emergency circumstances: s. 18(3) of the Act.

(2)       Appointment
    of Counsel

[17]

The Board capacity hearing commenced on Friday, September 23,
    2005 in the presence of a Serbian translator and Mr. Gligorevics treating
    psychiatrist, the respondent Dr. Jeffry McMaster.  Mr. Gligorevic was self-represented.

[18]

At the outset, Mr. Gligorevic told the Board that he had a lawyer
    (Mr. Zekavica) and that he wished him to be present at the hearing.  The Board
    Chair recognized the need for counsel, describing it as quite important,
    and indicated the Boards willingness to adjourn the hearing to the following
    week to permit Mr. Gligorevics lawyer to be present.

[19]

Dr. McMasters counsel informed the Board of her understanding that
    Mr. Zekavica could be available on October 4, 2005 to conduct the review
    hearing.  She also led evidence from a Hospital social worker to the effect
    that, contrary to the terms of his ORB disposition, Mr. Gligorevic had
    attempted to contact his victims by telephone, such that police have become
    involved yet again.  She expressed the concern that the longer that this
    matter is held over ... the victims are at risk of further contact from [Mr.
    Gligorevic] and submitted that an adjournment until October 4th was too long.
    She requested, instead, that the Board appoint counsel for Mr. Gligorevic.

[20]

The Board adjourned the hearing for five days, until Wednesday, September
    28, 2005.  Under the authority of s. 81(1) of the Act, it also directed the
    Public Guardian and Trustee (the PGT) to arrange legal representation for Mr.
    Gligorevic, so that the hearing could proceed on September 28th, with the
    Patients counsel or the appointed counsel.  As in force at the time of the
    hearing, s. 81(1) read as follows:

If a person who is or may be incapable with respect
    to a treatment ... is a party to a proceeding before the Board and does not
    have legal representation,

(a)  the Board may direct
    the [PGT] or the Childrens Lawyer to arrange for legal representation to be
    provided for the person; and

(b)  the person shall be
    deemed to have capacity to retain and instruct counsel.

[2]

[21]

On September 27, 2005, less than 24 hours before the scheduled
    resumption of the hearing, the PGT appointed a Toronto lawyer with experience
    in mental health proceedings to represent Mr. Gligorevic at the Board capacity hearing
    (PGT Counsel).  The PGTs directions to appointed counsel are of particular
    significance.  I will return to the issue of these directions when I consider
    the Superior Court Justices assessment of Mr. Gligorevics ineffective
    assistance claim.

[22]

Following her appointment, PGT Counsel promptly attended at the
    Hospital and met with Mr. Gligorevic.  PGT Counsel does not speak or understand
    Serbian and a Serbian-speaking translator was not present at the meeting.  In
    her later evidence before the Superior Court, PGT Counsel testified that Mr.
    Gligorevic did not wish to communicate with her and provided her with no
    instructions at their meeting.  Instead, Mr. Gligorevic told PGT Counsel, in
    English, that he had his own Serbian-speaking lawyer (Mr. Zekavica) and that he
    did not need or want her services.  PGT Counsel responded that she would attend
    the hearing the following day, in the event that Mr. Gligorevics lawyer was
    not present.  PGT Counsel then commenced a review of Mr. Gligorevics clinical
    file and spent several hours preparing for the hearing.

(3)       Resumption
    of Capacity Hearing

[23]

The hearing resumed as scheduled on September 28th.  PGT Counsel,
    Dr. McMaster and his counsel, and Mr. Gligorevic were in attendance, as was a Serbian-speaking
    translator.  Mr. Zekavica was not present.

[24]

At the start of the hearing, the Board Chair introduced the
    members of the Board and counsel.  In doing so, he described PGT Counsel as Mr.
    Gligorevics counsel.  PGT Counsel made no comment.  In particular, she did not
    inform the Board that Mr. Gligorevic had declined her services and had provided
    no instructions concerning the conduct of the hearing.

[25]

The Board Chair then explained the nature of the hearing.  When
    he again referred to PGT Counsel as Mr. Gligorevics lawyer, Mr. Gligorevic interrupted,
    stating that Mr. Zekavica was his lawyer and that he could not attend the
    hearing that day due to an eye operation.  The Board Chair indicated that PGT Counsel
    had been appointed as his lawyer, but Mr. Gligorevic stated: I would like to
    keep in touch with my lawyer because hes familiar with my case.  [PGT Counsel]
    is not familiar with my whole situation.  Again, PGT Counsel made no comment.

[26]

Shortly thereafter, the Board Chair suggested that PGT Counsel speak
    privately with [her] client and the Board recessed briefly for this purpose.
    On resumption of the hearing, PGT Counsel requested a further adjournment.  She
    informed the Board that (1) she had been contacted only the day before and had
    not had much time to prepare; (2) Mr. Zekavica spoke Mr. Gligorevics language
    and had represented him before the ORB; (3) according to information from the
    interpreter, Mr. Zekavica is well-known to the Serbian community and, in fact, had
    some difficulty with his eye as Mr. Gligorevic claimed; and (4) she would be
    available, as presumably would Mr. Zekavica, for the hearing the following
    week.  PGT Counsel then said, Im going to leave it in the hands of the
    Board.  Im available right now, thats not a problem.

[27]

Dr. McMasters counsel opposed the adjournment request, primarily
    on the basis that Mr. Gligorevic had been untreated since July 2005.
[3]
In response to questioning by the Board, Dr. McMaster indicated that, although it
    was not an emergency, he wished to start treatment as soon as possible since,
    in the Hospitals view, it appeared that Mr. Gligorevics delusions were having
    an impact on his behaviour  the placing of unwanted and prohibited telephone
    calls to others.  Dr. McMaster also said that the longer Mr. Gligorevics psychosis
    remained untreated, the lower the chances of achieving the best possible
    effect.

[28]

The Board denied the adjournment, stating, everything has been
    done in order to try to accommodate Mr. Gligorevic as much as we possibly can
    and our feeling is that he will be adequately represented today by [PGT Counsel].

[29]

The hearing proceeded.  Dr. McMaster testified and various
    Hospital documents concerning Mr. Gligorevic were admitted.  In his testimony,
    Dr. McMaster confirmed that Mr. Gligorevic was able to understand information
    relevant to his disorder and treatment decisions.  However, Dr. McMaster also
    offered the opinion that Mr. Gligorevic was unable to apply this information to
    his own circumstances and to appreciate the consequences of his treatment
    decisions or lack of decisions due to his mental disorder, specifically, his
    delusional belief systems and his lack of insight into his mental disorder.
    This was evidence that the appreciation criterion for capacity under s. 4(1) of
    the Act was not met.

[30]

Amicus
accept that during cross-examination of Dr.
    McMaster, PGT Counsel obtained several admissions that were arguably helpful to
    Mr. Gligorevics position.  These included Dr. McMasters acknowledgment that
    he had explained to Mr. Gligorevic, with the assistance of a Serbian-speaking
    translator, the positive effects of the antipsychotic medication and the anticipated
    consequences if Mr. Gligorevic continued to refuse such treatment.  However,
    Dr. McMaster also said that while Mr. Gligorevic understood this information,
    he did not think that it [had] any relevance whatsoever to his situation.

[31]

Mr. Gligorevic also testified.  He denied that he suffered from
    any mental disorder or that it was necessary for him to take antipsychotic
    medication to address his condition.  He maintained that he was at the Hospital
    because his lawyer had sent him there for an assessment.

(4)       Board
    Decision

[32]

In its reasons dated November 3, 2005, the Board reviewed the
    evidence of Mr. Gligorevics mental disorder, including his history of
    presenting in March 2005 as being extremely psychotic with bizarre
    persecutory delusions and auditory hallucinations, and his course at the
    Hospital.  It also referenced Dr. McMasters testimony that Mr. Gligorevic had
    tolerated antipsychotic medication earlier in the year with good results and
    his condition would again improve on resumption of this medication.

[33]

The Board then summarized the parties submissions.  With respect
    to PGT Counsels submissions, the Board stated in part:

[PGT Counsel] submitted that [Mr. Gligorevic]
    denied being mentally ill but that he understood the risks and benefits of the
    antipsychotic medication.  She emphasized that because he lacked insight into
    his illness, he was unable to determine how the taking of antipsychotic
    medication would apply to himself.

[34]

The Board next considered the applicable legal principles and
    undertook an analysis of the evidence concerning Mr. Gligorevics treatment
    capacity.  It accepted Dr. McMasters evidence that Mr. Gligorevic was unable
    to appreciate the reasonably foreseeable consequences of a treatment decision
    or lack of decision due to his fixed false belief that he was not mentally
    ill and his belief that there was no reason to take antipsychotic medication.
    In the Boards view, Dr. McMasters testimony was clear, cogent and
    compelling.

[35]

The Board concluded that the prerequisites for incapacity with
    respect to psychiatric treatment were met at the time of the Hearing and that,
    [a]ll of the evidence points to [Mr. Gligorevic] being unable to see the
    relevance of his taking antipsychotic medication in terms of himself and his
    own situation.  Accordingly, the Board confirmed that Mr. Gligorevic was
    incapable with respect to treatment with antipsychotic medication.

(5)       Superior
    Court Decision

[36]

Mr. Gligorevic appealed the Boards decision to the Superior
    Court of Justice with the assistance of the patient advocate at the Hospital.
    By subsequent order of the Superior Court, counsel was appointed for Mr.
    Gligorevic and directions were provided for the conduct of the appeal based on this
    courts
Procedural Protocol Re Allegations of Incompetence of Trial Counsel
    in Criminal Cases
(the Protocol).
[4]
When Mr. Gligorevic later delivered a notice of intention to act in person,
amicus
was appointed to assist the court.  PGT Counsel was also granted leave to
    intervene as an added party on the appeal.

[37]

In accordance with the court-ordered directions for the appeal and
    as contemplated by the Protocol, the parties filed fresh evidence in affidavit
    form concerning Mr. Gligorevics ineffective assistance of counsel claim.  Mr.
    Gligorevics brief affidavit (five short paragraphs) consisted mainly of a
    denial that he had ever instructed PGT Counsel to concede before the Board
    that [he] was incapable of making [his] own treatment decisions regarding
    antipsychotic medication.

[38]

PGT Counsel also filed an affidavit on which she was
    cross-examined by
amicus
.  In her affidavit, she swore that (1) there
    was overwhelming evidence at the time of the hearing that [Mr. Gligorevic] is
    mentally ill, that he suffers from serious delusions and that he does not
    understand that he is ill; (2) in her opinion, there was no meaningful
    evidence that could have been adduced to the contrary; (3) the evidence at the
    hearing also disclosed that Mr. Gligorevic did not believe that he was
    suffering from a mental illness; (4) Mr. Gligorevics only instructions to her
    consisted of his indication that he wished to be represented by his criminal
    counsel and bald assertions that he was not mentally ill and that the
    alleged need for treatment did not apply to him; (5) she adduced evidence
    before the Board that Mr. Gligorevic understood the risks and benefits of the
    proposed antipsychotic medication; (6) she made no concessions at the hearing on
    Mr. Gligorevics behalf; and (7) she did not argue to the Board that Mr.
    Gligorevic did not suffer from a mental illness because, in her opinion, to do
    so would have been a breach of her professional obligations in light of the
    evidence before the Board.

[39]

On cross-examination, PGT Counsel also stated that she was
    overwhelmed and placed in an extremely difficult position when the Board
    refused her adjournment request because she did not feel that she had sufficient
    time to prepare for the hearing and she would have liked to have been able to
    meet with [Mr. Gligorevic] with the services of an interpreter and spend a
    great deal more time with him before going ahead with the hearing.   She said
    that she did her best to prepare for the hearing in accordance with her mandate
    from the PGT, notwithstanding the limited time available to her.

[40]

The Superior Court Justice held that the Board hearing was not
    unfair, there was no evidence of a miscarriage of justice, the presumption of PGT
    Counsels competence had not been rebutted, and the Board had not relied on a concession
    of incapacity by PGT Counsel.  Accordingly, she rejected Mr. Gligorevics
    ineffective assistance claim.  She did not address his ss. 7 and 15(1)
Charter
claims.

(6)       Mr.
    Gligorevics Current Detention

[41]

As a result of this protracted litigation, Mr.
    Gligorevic has received no treatment with antipsychotic medication since June
    2005.  In early December 2005, the ORB ordered his detention at the medium
    secure unit of the Hospital:
Gligorevic (Re)
, [2005] O.R.B.D. No. 2086.
    Subsequently, in 2008, the ORB directed Mr. Gligorevics transfer to the
    Waypoint Centre for Mental Health Care in Penetanguishene:
Gligorevic (Re)
,
    [2008] O.R.B.D. No. 101.  At the time of this appeal, he continued to be
    detained at that facility by further order of the ORB:
Gligorevic (Re)
, [2011]
    O.R.B.D. No. 722.

IV.      Issues

[42]

There are four issues:

(1)

What standards of review apply to the Boards and the Superior Court
    Justices decisions?

(2)

Is an ineffective assistance claim available on appeal from a Board
    capacity decision?

(3)

If the answer to question (2) is yes, what test applies to determine
    such claims?

(4)

Did PGT Counsel provide ineffective assistance and thereby cause a
    miscarriage of justice?

V.        Analysis

(1)

Standards of Review

[43]

The standard of review applicable to the Boards capacity
    decision is uncontroversial.  The issue before the Board  whether Mr.
    Gligorevic was capable of making his own decision regarding treatment with
    antipsychotic medication  required the Board to apply the evidence before it
    to the statutory test for capacity set out in s. 4(1) of the Act.  In
Starson
,
    at paras. 84-88, the Supreme Court held that this question of mixed fact and
    law is reviewable on a standard of reasonableness.  See also
Dunsmuir v. New
    Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190;
Giecewicz v. Hastings
,
    2007 ONCA 890, 288 D.L.R. (4th) 587, leave to appeal to S.C.C. refused, [2008]
    S.C.C.A. No. 97.  There is no suggestion that the Board erred in its interpretation
    of the statutory test for capacity.

[44]

In contrast, the appeal to the Superior Court involved an
    allegation that PGT Counsels assistance was ineffective.  The determination of
    this issue required the Superior Court Justice to consider the test for
    ineffective assistance of counsel and to apply that test to the facts of this
    case as established by the written record before her.  This, too, is a question
    of mixed fact and law.  However, it attracts the deferential standard of
    palpable and overriding error, unless the Superior Court Justice made some
    extricable error in principle with respect to her appreciation of the test or
    its application, in which case the error may amount to an error of law that is
    reviewable on the correctness standard.  Further, where hearing fairness is
    fatally compromised, standard of review considerations assume less
    significance.  See
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R.
    235, at para. 37;
Country Pork Ltd. v. Ashfield (Township)
(2002), 60
    O.R. (3d) 529 (C.A.), at para. 41;
Waxman v. Waxman
(2004), 186 O.A.C.
    201 (C.A.), at paras. 290-93, 296-97;
H.L. v. Canada (Attorney General),
2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 72-75;
FL Receivables Trust
    2002-A (Administrator of) v. Cobrand Foods Ltd.
, 2007 ONCA 425, 85 O.R.
    (3d) 561, at paras. 45-46;
Fendelet v. Dohey
, 2007 ONCA 475, at para. 4.

(2)

Availability of Ineffective Assistance Claim

[45]

A party to a proceeding before the Board has a statutory right of
    appeal to the Superior Court on a question of law or fact or both: s. 80(1) of
    the Act.  Under s. 80(10) of the Act, the Superior Court enjoys a wide remedial
    jurisdiction on a s. 80(1) appeal.  It may exercise all the powers of the
    Board, substitute its opinion for that of a health practitioner or the Board
    (amongst others), or refer the matter back to the Board, with directions, for
    rehearing in whole or in part.

[46]

Amicus
submit that an ineffective assistance claim may be
    advanced as a ground of appeal from a Board capacity ruling for two reasons.
    First, they submit that the issue of ineffective assistance engages a question
    of law within the meaning of s. 80(1) of the Act.  Second, relying principally
    on this courts decision in
R. v. Joanisse
(1995), 102 C.C.C. (3d) 35,
    leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347,
amicus
argue
    that the court has authority under the
Charter
to entertain an
    ineffective assistance claim on a s. 80(1) appeal.  In
Joanisse
, Doherty
    J.A. indicated, at pp. 57-58, that an argument in a criminal appeal of
    ineffective representation at trial may be framed either in terms of a denial
    of
Charter
rights or as a miscarriage of justice.  On either approach,
    the appellant must show ineffective representation which had the effect of
    rendering the trial unfair.  Absent that showing, there is neither a
Charter
breach nor a miscarriage of justice.

[47]

Dr. McMaster accepts that the Superior Courts broad jurisdiction
    under ss. 80(1) and 80(10) of the Act encompasses the ability to consider
    ineffective assistance claims on appeal from a Board capacity decision.
    Further, as I understood his argument, he also accepts that the
Charter
may be invoked in a proper case to support an ineffective assistance claim on a
    s. 80(1) appeal.

[48]

However, Dr. McMaster submits that, in this case, it is
    unnecessary to determine the ineffective assistance claim within the framework
    of the
Charter
since the main remedy sought  a new capacity hearing
    before the Board  may be granted under the Act.  Further, a
Charter
challenge based on an argument of ineffective assistance must be directed at
    those governmental authorities who are responsible for providing persons found
    incapable with respect to treatment with legal representation.  Dr. McMaster contends
    that, as this was not his responsibility, Mr. Gligorevics appeal was not
    properly constituted as a
Charter
-based claim.

[49]

I make three preliminary observations.  First, in my view, it is
    unnecessary to address Dr. McMasters
Charter
-based argument.  During
    oral argument,
amicus
focused on the claim that the ineffective
    assistance alleged here occasioned a miscarriage of justice.  In my view, the
    jurisdiction of the courts to intervene to prevent a miscarriage of justice is
    properly invoked in this case.

[50]

Second, ss. 80(1) and 80(10) of the Act are concerned with
    appeals to the Superior Court from Board decisions.  They do not apply to
    appeals to this court and, hence, cannot ground this courts jurisdiction to
    entertain an ineffective assistance claim on a mental health-related appeal.
    The decision at issue before this court is that of the Superior Court Justice
    on Mr. Gligorevics appeal of first instance.  Her decision was a final order
    from which an appeal lies to this court under s. 6(1)(b) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43 (the CJA).  Section 6(1)(b) places no
    limitation on the grounds that may be advanced on appeal from a decision of a
    judge of the Superior Court:
Waxman
, at para. 290.  In addition, s.
    134(1) of the CJA gives the appellate court wide remedial powers.  Under that
    provision, on appeal to this court, the court may (1) make any order or
    decision that ought to or could have been made by the court or tribunal
    appealed from; (2) order a new trial; or (3) make any other order or decision
    that is considered just.  Further, under s. 134(6), a new trial may be directed
    where some substantial wrong or miscarriage of justice has occurred.

[51]

Third, the issue of the availability of an ineffective assistance
    claim as a ground of appeal from a Board capacity ruling is a matter of first
    impression for this court.  I am unaware of any case, and counsel were unable
    to point to any authority, in which an ineffective assistance of counsel claim
    was advanced as a ground of appeal in the mental health law domain.

[52]

The right to advance an ineffective assistance claim on a
    criminal appeal is well-established.  In
R. v. G.D.B.
, 2000 SCC 22,
    [2000] 1 S.C.R. 520, the Supreme Court confirmed that the right to effective
    assistance of counsel extends to all accused persons.  Justice Major, writing
    for the court, explained at para. 24: In Canada that right is seen as a
    principle of fundamental justice.  It is derived from the evolution of the
    common law, s. 650(3) of the
Criminal Code

of Canada
and ss. 7
    and 11(d) of the [
Charter
].  See also
R. v. Archer
(2005), 202
    C.C.C. (3d) 60 (Ont. C.A.), at para. 118;
Joanisse
, at pp. 56-58.  The
    effective assistance of counsel is an important aspect of an accuseds right to
    make full answer and defence and right to a fair trial:
R. v. B. (L.C.)
(1996), 27 O.R. (3d) 686 (C.A.), at para. 52.  As a result, ineffective
    assistance claims are encountered frequently as a ground for a new trial in
    appeals from conviction in criminal cases.

[53]

In contrast, ineffective assistance claims are rare in civil
    appeals.  As this court observed in
D.W. v. White
(2004), 189 O.A.C.
    256, at para. 51, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 486,
    this is not surprising since the law affords other remedies for a losing
    litigant in a civil case if ineffective assistance at trial can be established,
    most notably, the right to sue for damages arising from solicitor negligence.

[54]

Nonetheless, this court has left open the possibility of an
    ineffective assistance argument as a ground of appeal in a civil case, on an
    exceptional basis, especially where the interests of vulnerable people are
    engaged.  In
D.W.
, Catzman J.A. of this court stated, at para. 55:

I would not be prepared to close the door to the
    viability of ineffective assistance of counsel as a ground for a new trial in a
    civil action.  But, also like Grange J.A. [in
Dominion Readers Service Ltd.
    v. Brant
(1982), 41 O.R. (2d) 1 (Ont. C.A.)],
I would limit the
    availability of that ground of appeal to the rarest of cases, such as

(and
    these are by way of example only)

cases involving

some overriding
    public interest or cases

engaging the interests of vulnerable persons
    like children or persons under mental disability
. [Emphasis added.]

[55]

Ineffective assistance has also been advanced as a ground for
    judicial review of administrative action in the immigration and refugee
    protection law context: see
Teganya v. Canada (Minister of Citizenship and
    Immigration)
, 2011 FC 336, 386 F.T.R. 160;
Parast v. Canada (Minister of
    Citizenship and Immigration)
, 2006 FC 660, 153 A.C.W.S. (3d) 1210;
Shirvan
    v. Canada (Minister of Citizenship and Immigration)
, 2005 FC 1509, 143
    A.C.W.S. (3d) 1098;
Robles v. Canada (Minister of Citizenship and
    Immigration)
, 2003 FCT 374, 122 A.C.W.S. (3d) 19.

[56]

G.D.B.
holds that the right to effective assistance of
    counsel is a constitutionally-protected principle of fundamental justice, at
    least in the criminal law.  This recognizes the essential importance of
    effective assistance of counsel in adversarial proceedings.  In
G.D.B.
,
    at para. 25, Major J. cited with approval the following description of the
    value of effective assistance provided by Doherty J.A. in
Joanisse
, at
    p. 57:

The importance of effective assistance of counsel
    at trial is obvious.  We place our trust in the adversarial process to
    determine the truth of criminal allegations.  The adversarial process operates
    on the premise that the truth of a criminal allegation is best determined by
    partisan advocacy on both sides of the case:
U.S. v. Cronic
, 104 S.
    Ct. 2039 (1984), per Stevens J. at p. 2045.  Effective representation by
    counsel makes the product of the adversarial process more reliable by providing
    an accused with the assistance of a professional trained in the skills needed during
    the conduct of trial.  The skilled advocate can test the case advanced by the
    prosecution, as well as marshal and advance the case on behalf of the defence.
    We further rely on a variety of procedural safeguards to maintain the requisite
    level of adjudicative fairness in that adversarial process.  Effective
    assistance by counsel also enhances the adjudicative fairness of the process in
    that it provides to an accused a champion who has the same skills as the
    prosecutor and who can use those skills to ensure that the accused receives the
    full benefit of the panoply of procedural protections available to an accused.

Where counsel fails to provide effective
    representation, the fairness of the trial, measured both by reference to the
    reliability of the verdict and the adjudicative fairness of the process used to
    arrive at the verdict, suffers.  In some cases the result will be a miscarriage
    of justice.

[57]

In my opinion, the same observations apply here.
Joanisse
concerned effective assistance at a criminal trial, where the liberty rights of
    an accused are directly implicated.  However, the need for effective assistance
    is no less serious in the mental health context where medical treatment
    decisions are at issue.  In my view, this conclusion finds support in the s. 7
Charter
guarantee of the right to life, liberty and security of the person and at common
    law.

[58]

At common law, a patients right of self-determination with
    respect to medical treatment is recognized and protected, absent emergency
    circumstances.  This right led to the development of the doctrine of informed
    consent as a critical means of protecting a patients right to control his or
    her own medical treatment.  For example, in
Malette v. Shulman
(1990),
    72 O.R. (2d) 417 (C.A.), at pp. 423-24, this court stated:

Patients have the decisive role in the medical
    decision-making process.

...

[A patients] right of self-determination is
    recognized and protected by the law.  As Justice Cardozo proclaimed in his
    classic statement: Every human being of adult years and sound mind has a right
    to determine what shall be done with his own body.

...

A competent adult is generally entitled to reject a
    specific treatment or all treatment, or to select an alternate form of
    treatment, even if the decision may entail risks as serious as death or may
    appear mistaken in the eyes of the medical profession or of the community.
    Regardless of the doctors opinion, it is the patient who has the final say on
    whether to undergo the treatment.  [Citations omitted.]

[59]

The common law right of self-determination concerning medical
    treatment is premised on the competency of the patient to understand and make
    treatment decisions.  In Ontario, the right of involuntary patients to
    self-determination with respect to medical treatment has been codified by the
    presumption of capacity set out in s. 4(2) of the Act.  It is further protected
    by the prohibition under s. 10(1) of the Act against medical treatment without
    consent.

[60]

In my opinion, as with an accused whose liberty is at risk in a
    criminal proceeding, a treatment capacity hearing implicates a patients
    fundamental human rights.  In a very real sense, an incapacity finding engages
    a patients liberty, dignity and right of self-determination with respect to
    medical treatment.  The onus at a Board capacity hearing is on the health
    practitioner asserting incapacity to demonstrate incapacity on the requisite
    civil standard of proof by means of strong and unequivocal evidence:
Starson
,
    at para. 77;
Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal
(2005), 76 O.R. (3d) 321, at para. 79, leave to appeal to S.C.C. refused,
    [2005] S.C.C.A. No. 428.  In that sense, where a patient contests his or her
    physicians finding of incapacity before the Board, the resulting capacity
    review hearing must be viewed as an adversarial, adjudicative proceeding where
    fundamental human rights are engaged.

[61]

Seen in this context, the effective assistance of counsel at a
    Board capacity hearing is no less important than at a criminal trial.  Adapting
    Doherty J.A.s reasoning in
Joanisse
, at p. 57, to the mental health
    context, effective assistance by counsel at such hearings enhances the
    adjudicative fairness of the process.  It ensures that a patient who has been
    found incapable by his or her physician has a champion who has the same skills
    as counsel for the health care practitioner who can use those skills to ensure
    that the patient receives the full benefit of procedural protections available
    to the patient.  Moreover, effective assistance ensures that the case for
    incapacity is thoroughly and skilfully tested and evidence tending to support
    capacity is advanced on behalf of the patient.

[62]

The argument is expressed this way by
amicus
.  They submit
    that a patients right to refuse unwanted medical treatment is not
    self-executing.  In other words, the right is meaningless unless a patient,
    found incapable with respect to treatment by his or her physician, is able to
    effectively assert that right.
Amicus
maintain that without the
    availability of effective assistance of counsel who is prepared to undertake
    fearless advocacy for the allegedly incapable patient at a Board capacity
    hearing, the right of self-determination in respect of medical treatment
    becomes illusory.

[63]

I agree.  Involuntary patients, especially NCR patients, are
    among the most vulnerable persons in the justice system.  The effective
    assistance of counsel at a Board capacity hearing ensures that a patients
    right of self-determination with respect to treatment is respected and not
    forfeited without proper evidence of incapacity in accordance with the Act.  This
    can only enhance the fairness of a Board capacity hearing, measured both by the
    adjudicative fairness of the process used to arrive at a capacity determination
    and by the reliability of the determination.

[64]

It follows, in my view, that where it is established that counsel
    at a Board capacity hearing failed to provide effective assistance, thereby
    occasioning a miscarriage of justice, a patient may appeal an incapacity
    finding by the Board on the basis of that failure.

[65]

To conclude, I am persuaded that an argument of ineffective
    assistance of counsel may be raised as a ground of appeal from a Board
    treatment capacity decision.  The Superior Courts jurisdiction to consider
    such an allegation is anchored in its wide authority under ss. 80(1) and 80(10)
    of the Act.  This courts jurisdiction to do so derives from s. 6(1)(b) of the
    CJA, which permits appellate review of any final order by a Superior Court
    Justice, and its authority under ss. 134(1) and (6) of the CJA.  In either
    forum, in my opinion, an ineffective assistance argument may be framed as a
Charter
violation, or as the cause of a miscarriage of justice.

(3)

Test
    for Ineffective Assistance Claims

in
    Mental Health Cases

[66]

In Canada, the test for establishing ineffective assistance has
    developed in the criminal law context with reference to the decision of the
    United States Supreme Court in
Strickland v. Washington
, 466 U.S. 668 (1984).
Strickland
holds that the inquiry regarding counsels conduct contains
    both performance and prejudice components.  Citing
Strickland
, the
    Supreme Court held in
G.D.B.
, at para. 26, that for an appeal to succeed
    on this ground it must be established that counsels acts or omissions
    constituted incompetence and, further, that a miscarriage of justice resulted.
    However, in the absence of a miscarriage of justice, [T]he question of the
    competence of counsel is usually a matter of professional ethics and is not a
    question for the appellate courts to consider:
G.D.B.
, at paras. 5 and
    26.

[67]

When a claim of ineffective assistance is raised, the appellant must
    demonstrate (1) where the claim is based on contested facts, the facts that
    underpin the claim; (2) the incompetence of the assistance provided (the
    performance component); and (3) that the ineffective assistance caused a
    miscarriage of justice (the prejudice component):
Archer
, at paras.
    119-120.  See also
R. v. D.M.G.
, 2011 ONCA 343, 105 O.R. (3d) 481, at
    para. 100;
Joanisse
, at p. 59;
R. v. DiPalma
, [2005] 2 C.T.C. 132
    (Ont. C.A.), at para. 36.

[68]

With respect to the second requirement, a showing of
    incompetence, Doherty J.A. elaborated in
Archer
, at para. 119:

Incompetence is measured against a reasonableness
    standard.  That assessment is made having regard to the circumstances as they
    existed when the impugned acts or omissions occurred.  Hindsight plays no role
    in the assessment ...  The reasonableness analysis must proceed upon a strong
    presumption that counsels conduct fell within the wide range of reasonable
    professional assistance: [
G.D.B.
, at para. 27].

See also
Joanisse
, at pp. 60-61;
R. v. White
(1997), 32 O.R. (3d) 722 (Ont. C.A.), at pp. 744-45.

[69]

Amicus
urge this court to adopt a modified standard for
    assessing the incompetency of counsel in the mental health context.  They argue
    that the unique circumstances of persons with mental disorder[s] appearing
    before the Board justify a less deferential approach to review of counsels
    performance than that applicable in the criminal law context.  As a result,
    they contend, the strong presumption of the competency of counsel, stressed in
G.D.B.
,
Archer
,
Joanisse
and
White
, should be more flexibly
    applied on appeals from Board treatment capacity decisions.

[70]

I do not accept this argument.  There is no principled reason, in
    my view, to adopt a lower, and less deferential, standard for the scrutiny of
    counsels performance in proceedings before the Board than otherwise applies in
    the assessment of ineffective assistance claims.

[71]

As detailed in their factum,
amicus
submit that persons
    suffering from mental disorders and facing the risk of a treatment incapacity
    ruling, belong to a marginalized, vulnerable group, are exposed to capacity
    assessments by their health care providers and the Board at moments of
    personal crisis, and are frequently in no position to assess the
    effectiveness of [their] own counsel or to act upon any departure from an
    acceptable standard.

[72]

The difficulty with this submission is that many of the factors
    identified by
amicus
may also apply to an accused who is caught up in
    the criminal justice system.  Like mental health patients, those facing
    criminal prosecution are often detained or subject while on bail to circumstances
    of significant liberty restriction and experience considerable confusion about
    their legal rights.  The liberty, dignity and autonomy rights of an accused are
    no less robust than those of a mental health patient.

[73]

More important,
amicus
argument implies that, by reason
    of mental disorder alone, mental health patients are unable to understand the
    legal process or instruct or communicate with counsel.  I do not accept this
    proposition.  It is inconsistent with the approach to the assessment of the capacity
    of mental health patients accepted by Canadian courts (see
e.g.

Starson
)
    and is also at odds with the presumption of capacity to retain and instruct
    counsel declared by the legislature in s. 81(1)(b) of the Act.

[74]

Further, as Dr. McMasters counsel points out, there is no basis
    for assuming that mental health counsel, as a group, are less competent than
    other classes of counsel.  On the contrary, many counsel who act in the mental
    health law arena in Ontario have significant accumulated expertise with mental
    health law issues generally, and with the Board in particular, and enjoy highly
    specialized legal practices.

[75]

Amicus
rely heavily on
In re Mental Health of K.G.F.
,
    306 Mont. 1, a decision of the Montana Supreme Court, in support of their argument
    for a lower incompetency threshold for mental health counsel.  This reliance is
    misplaced.  The Montana Supreme Court itself recognized in
K.G.F.
, at
    para. 50, that the standard for effective assistance of counsel articulated in
    that case was based on Montanas unique constitutional and statutory framework
    for the determination of the substantive and procedural rights of mental health
    patients.  The Montana legal framework has no counterpart in Ontario.  On this
    ground alone,
K.G.F.
is distinguishable.

[76]

But there is more.  The approach to the assessment of the
    effectiveness of assistance outlined in
K.G.F.
involves the review of a
    list of anticipated steps to be taken by counsel in order to provide adequate
    representation for a mental health client.  This check-list approach to the
    assessment of counsels competency has been rejected in Canada, for sound
    practical and policy reasons.  As emphasized in
G.D.B.
, at para. 27, and
    again in
Archer
, at para. 119, the applicable test in this jurisdiction
    for the scrutiny of the reasonableness of counsels conduct proceeds on a
    strong presumption that counsels conduct fell within
a wide range of
    reasonable professional assistance
 (emphasis added).  In
Joanisse
,
    at p. 61, Doherty J.A. cautioned that, An approach which tests counsels
    performance against a list of specific dos and donts would introduce a
    false sense of certainty into the assessment of incompetency claims.  The
    situations which may give rise to a claim of incompetence are infinitely
    variable.  See also
White
, at p. 745;
R. v. Dunbar
, 2003 BCCA
    667, 191 B.C.A.C. 223, at paras. 27-29.

[77]

Thus, in Canada, the reasonableness of counsels performance is
    not assessed against a predetermined catalogue of conduct; rather, it is a
    fact-specific inquiry that must take account of the particular circumstances
    and context of the case, from the point in time when counsel made the decisions
    challenged on appeal:
Joanisse
, at p. 61;
Dunbar
, at para. 28.

[78]

Accordingly, I would reject
amicus
proposed modified test
    for addressing the performance component of an ineffective assistance claim on
    appeal from a Board treatment capacity decision.  The governing test is that
    laid down in
G.D.B.
,
Archer
,
Joanisse
and
White
.

(4)

Ineffective Assistance Allegation

[79]

Amicus
argue before this court, as they did before the
    Superior Court Justice, that a new Board capacity hearing should be ordered
    because the ineffective assistance provided by PGT Counsel caused a miscarriage
    of justice.  They allege numerous areas of incompetence in connection with PGT Counsels
    dealings with Mr. Gligorevic  before, during and after the Board capacity hearing.

[80]

It is unnecessary for the disposition of this appeal to address
    the entire constellation of
amicus
complaints of ineffective
    assistance.  Two particular complaints require individual consideration (1) the
    assertion that PGT Counsel failed to obtain instructions from Mr. Gligorevic
    and to inform the Board of her lack of instructions (the Instructions
    Complaint); and (2) the claim that PGT Counsel, without instructions, conceded
    in her closing submission to the Board that Mr. Gligorevic was incapable with
    respect to treatment with antipsychotic medication (the Concession Complaint).

(a)       Instructions
    Complaint

[81]

There are two branches to the Instructions Complaint.
Amicus
argue that PGT Counsels failure to obtain instructions from Mr. Gligorevic
    regarding the hearing, coupled with her failure to inform the Board that she
    lacked such instructions, resulted in a miscarriage of justice (1) by depriving
    Mr. Gligorevic of the appearance of adjudicative fairness; and (2) by yielding an
    unreliable incapacity finding by the Board.  On both grounds, they maintain,
    the Superior Court Justice erred by concluding that there was no evidence of a
    miscarriage of justice in this case.  I agree with the first branch of this
    argument.

[82]

Where, as here, an allegation of ineffective assistance is made
    on appeal, the court is obliged to consider first whether counsels alleged
    incompetence resulted in a miscarriage of justice.  This approach focuses the
    courts attention on the ultimate purpose of the appellate inquiry  the
    determination of whether a miscarriage of justice occurred  rather than on the
    grading of counsels performance or conduct:
G.D.B.
, at para. 35;
Archer
,
    at para. 121;
Dunbar
, at paras. 24-25;
Di Palma
, at para. 36;
Joanisse
,
    at p. 62.

[83]

G.D.B.
instructs that miscarriages of justice in relation
    to ineffective assistance claims may take various forms.  Justice Major indicated,
    at para. 28, [i]n some instances, counsels performance may have resulted in
    procedural unfairness.  In others, the reliability of the trials result may
    have been compromised.  In
Archer
, at para. 120, Doherty J.A. put it
    this way: A miscarriage of justice occurs if the appellate court is satisfied
    that counsels ineffective representation undermined the appearance of the
    fairness of the trial, or the reliability of the verdict.  See also
D.M.G.
,
    at para. 103.  For this reason, close attention must be paid to the essential
    character of the conduct said to  constitute incompetence: The nature of the
    incompetence demonstrated will, in large measure, dictate the kind of inquiry
    required to determine the effect of that incompetence on the fairness of the
    trial:
Joanisse
, at p. 62.

[84]

In
Joanisse
, at pp. 62-64, Doherty J.A. identified two
    general categories of ineffective assistance claims.  The first category
    involves allegations of an actual or constructive denial of the assistance of
    counsel.  This may, but need not, involve impugned conduct that permeates
    counsels entire participation in the proceeding at issue.

[85]

In other cases, the alleged ineffective assistance concerns specific
    decisions made or actions taken or omitted by counsel.  In this second
    category, the incompetency allegation rests on the contention that the
    assistance given was so deficient that it was ineffective and the effect of
    counsels conduct on the fairness of the trial is measured by reference to the
    impact of the error or errors on the reliability of the result:
Joanisse
,
    at p. 63.  This requires an appellant to demonstrate that if counsel had
    performed in a competent fashion, there is a reasonable probability that the
    outcome could have been different:
Archer
, at para. 120;
G.D.B.
,
    at pp. 298-299.

[86]

The Instructions Complaint falls within the first category of
    cases.  The essence of the complaint is that PGT Counsels conduct caused the
    Board to unknowingly proceed on the erroneous assumption that PGT Counsel was
    in a position to represent Mr. Gligorevics interests at the hearing when, in
    fact, she was not.  Thus, it is said, by reason of PGT Counsels conduct and
    unbeknownst to the Board, Mr. Gligorevic was without the benefit of counsel at
    the Board capacity hearing.

[87]

This complaint has no bearing on the reliability of the Boards
    incapacity finding.  Rather, the alleged ineffective assistance implicates the
    fairness of the process by which that finding was reached.  Based on Dr.
    McMasters uncontradicted opinion evidence and the medical documents filed with
    the Board, there was a firm evidentiary foundation for the Boards conclusion
    that Mr. Gligorevic did not meet the appreciation component of the test for
    capacity under s. 4(1) of the Act due to his mental disorder.  Further, as the
    Superior Court Justice held, there is no evidence in this case of any
    reasonable probability of a different substantive outcome on the question of Mr.
    Gligorevics treatment capacity had PGT Counsels conduct been different.
    Accordingly, on this record, the Boards incapacity finding cannot be said to
    be unreliable.

[88]

That, however, does not end the matter: A reliable verdict may
    still be the product of a miscarriage of justice if the process through which
    that verdict was reached was unfair (citations omitted):
Joanisse
, at
    p. 62.  As I will explain, I conclude that a miscarriage of justice did occur
    in this case because the Board, by reason of PGT Counsels conduct, proceeded
    on a fundamental misapprehension of the facts regarding whether Mr. Gligorevic was
    represented by counsel at the hearing.  On this basis alone, a new Board
    capacity hearing is required.

[89]

First, I do not accept
amicus
or PGT Counsels
    characterization of the facts underlying the Instructions Complaint.  Contrary
    to their contentions, PGT Counsel was not without instructions from Mr.
    Gligorevic.  Nor did the Superior Court Justice make this finding.  The record
    establishes that PGT Counsel sought and obtained Mr. Gligorevics
    instructions.  Those instructions were clear and straightforward.  Mr.
    Gligorevic rejected PGT Counsels services and, in effect, directed that she
    was not to act on his behalf.

[90]

Recall that in her affidavit filed in the Superior Court, PGT Counsel
    deposed that Mr. Gligorevic told me that he did not want my services, since he
    had his own lawyer.  On cross-examination, she testified that Mr. Gligorevic
    just did not want to communicate with me, that he told her that he had his
    own lawyer, that she had no instructions from him concerning the conduct of the
    hearing, and that even after the Board denied her adjournment request, it was
    clear that Mr. Gligorevic wanted another lawyer.  Indeed, at one point during
    her cross-examination, when asked whether, at any point, she had explained the
    process before the Board to Mr. Gligorevic, PGT Counsel succinctly stated: He
    didnt want me.  He didnt want me.  He dismissed me.  I could do nothing.

[91]

This evidence, in my opinion, established that PGT Counsel, in
    fact, received instructions from Mr. Gligorevic.  Mr. Gligorevic instructed her
    that he did not need or wish her services, that he had his own Serbian-speaking
    lawyer, and he dismissed her.  Consequently, PGT Counsel had no authority
    from Mr. Gligorevic to represent him before the Board.

[92]

The Superior Court Justice concluded that the transcript of the
    Board proceeding did not disclose an unfair hearing, reasoning in part,
    Counsel appointed for the Appellant cross-examined and obtained certain
    admissions supportive of the Appellants position.
Audi alteram partem
was abided by.

[93]

However, the Superior Court Justices reasons do not demonstrate
    that she turned her mind to whether PGT Counsel had authority to represent Mr.
    Gligorevic at the hearing.  In my view, in light of the fresh evidence before
    her, the Superior Court Justice was obliged to do so.  In particular, the
    Superior Court Justices reasons suggest that she failed to consider the
    conflict between Mr. Gligorevics rejection of PGT Counsels representation and
    her appointment by the PGT.  Nor, based on her reasons, does it appear that the
    Superior Court Justice questioned the hearing fairness implications of the
    Boards ignorance of any uncertainty in PGT Counsels authority to act for Mr.
    Gligorevic.  With respect, this, too, was an error.

[94]

And this is where the problem lies.  At no time did PGT Counsel have
    authority from Mr. Gligorevic to act for him before the Board.  Moreover, PGT
    Counsel failed to inform the Board of any difficulty, conflict or uncertainty
    in her authority to represent Mr. Gligorevic at the hearing.  On the contrary, in
    her submissions to the Board concerning her adjournment request, PGT Counsel implied
    precisely the opposite by telling the Board, notwithstanding Mr. Gligorevics
    instructions: Im available right now, thats not a problem.  The Board
    accepted and relied on this statement when, in denying the requested
    adjournment, it said, our feeling is that he will be adequately represented
    today by [PGT Counsel].  Recall, as well, that in his own remarks at the
    hearing, the Board Chair emphasized the need for and the importance of counsel
    for Mr. Gligorevic.

[95]

I do not suggest any bad faith by PGT Counsel.  Far from it.  I
    accept that her actions throughout were well-intentioned.  Nonetheless, she had
    no authority from Mr. Gligorevic to act on his behalf.  This was exacerbated by
    her comments to the Board and her failure to disclose that Mr. Gligorevic had
    rejected her services, which left the Board with the impression that she was
    ready, willing and able to represent Mr. Gligorevic at the hearing.  This was
    incorrect.

[96]

While PGT Counsel may have been ready and willing to participate
    on Mr. Gligorevics behalf, she was not able to do so  her authority to act
    had been denied by Mr. Gligorevic.  In the result, the entire hearing was
    conducted by the Board under the mistaken assumption that Mr. Gligorevic was
    represented by counsel when, in reality, he was not.  In the particular
    circumstances of this case, this was a miscarriage of justice.

[97]

Was PGT Counsels conduct reasonable, given her appointment by
    the PGT pursuant to a Board order?  In my view, it was not.

[98]

At the time of PGT Counsels appointment, the PGT provided a
    standard form information bulletin dated April 6, 2003 to counsel appointed to
    provide representation for persons alleged to be incapable in proceedings under
    the Act.  The Bulletin describes the role of the appointed lawyer when the
    client will not or cannot give instructions, as follows:

The lawyer should attempt to determine the
    clients wishes and directions through third party sources
such as medical
    practitioners, family members, caregivers and friends of the client.  If the
    clients wishes or directions in the past or at present have been expressed to
    others in a clear and consistent manner, then the evidence should be presented
    in Court or to the Board.

The lawyer must not become a substitute decision
    maker for the client in the litigation: that is, the lawyer cannot consent to
    the proposed action or treatment even if it appears to be in the best interests
    of the client.
The lawyer must ensure that the evidentiary and procedural
    requirements are tested and met, even where no instructions, wishes or
    directions at all can be obtained from the client
.  [Emphasis added.]

[99]

It is said that, in light of the provisions of the Bulletin, PGT Counsel
    was obliged to proceed to test the evidentiary and procedural requirements at
    the hearing notwithstanding Mr. Gligorevics opposition to her participation
    and his refusal of her services.  I disagree.

[100]

The PGTs involvement in providing legal representation in
    proceedings under the Act for persons alleged to be incapable is a laudable
    service to the administration of justice.  Undoubtedly, the provision of such
    representation greatly assists both affected patients and the Board in most
    cases.  But guidelines or directions to counsel from the PGT cannot override a
    patients express wishes, especially in light of the presumption of capacity to
    retain and instruct counsel set out in s. 81(1)(b) of the Act.

[101]

This is not a case where the patient would not or could not give
    instructions by reason of a mental disorder.  This is a case where the patient
    expressly and consistently rejected representation by the PGT appointee.  In
    the face of that rejection, PGT Counsel could not simply proceed, ostensibly as
    Mr. Gligorevics counsel and against his wishes, to conduct the hearing.  The
    effect of the Board order directing the PGT to appoint counsel was exhausted once
    PGT Counsel was appointed and Mr. Gligorevic rejected her services.

[102]

In these circumstances, what action was reasonably necessary?  In
    my view, at a minimum, it was incumbent on PGT Counsel to inform the Board that
    her retainer had been denied by Mr. Gligorevic and, consequently, that she had
    no authority from him to represent his interests or provide him with assistance
    at the Board capacity hearing.  Had this information been disclosed, the
    Boards consideration of PGT Counsels adjournment request may well have been
    different.  In any event, such disclosure would have ensured that the Board was
    under no misapprehension regarding PGT Counsels role.

[103]

Further, in my view, PGT Counsel was obliged to withdraw from
    further participation as appointed counsel for Mr. Gligorevic at the capacity
    hearing.  The Superior Court Justice considered, and rejected, this course of
    action, stating: I am not satisfied in any case that it would have been
    responsible for counsel having been appointed by the PGT under the Boards
    order, to have withdrawn and thus abandoned the Appellant.  With respect, I
    disagree.

[104]

It is not a question of abandonment.  PGT Counsel had no
    authority to act from Mr. Gligorevic.  Quite the opposite.  It is important to
    remember that PGT Counsel was appointed as
Mr. Gligorevics counsel
, not
    as a friend of the court.  For this reason, the Bulletin is replete with
    references to the appointees client.

[105]

Under s. 81(1)(b) of the Act, Mr. Gligorevic was deemed capable
    for the purpose of retaining and instructing counsel.  That deemed capacity necessarily
    extended to the decision to refuse to retain counsel.  The Bulletin recognizes,
    correctly, that it was not open to counsel to speculate on and to proceed
    according to her personal conception of Mr. Gligorevics best interests.
[5]

[106]

Moreover, PGT Counsels withdrawal need not have frustrated the
    conduct of the capacity hearing.  It was open to the Board to adjourn the
    hearing, as PGT Counsel requested, until Mr. Zekavica was available.  It is
    regrettable that this did not occur.  On the information before the Board, only
    a short additional adjournment would have been required.  Alternatively, it may
    have been open to the Board to appoint
amicus
to assist it or Mr.
    Gligorevic at the Board capacity hearing pursuant to the Boards authority to
    manage its own process, in order to protect the fairness of the hearing and the
    proper administration of justice.
[6]
In any event, Mr. Gligorevic was entitled to act in person at the capacity
    hearing, as he elected to do on his appeal to the Superior Court, and the Board
    was empowered to proceed on that basis.

[107]

None of these options was pursued.  Instead, the Board proceeded
    in the mistaken belief that Mr. Gligorevic had the benefit of counsel.  It is
    impossible to be certain what

action the Board would have taken had the true facts been
    disclosed to it although, as I have said, I think it probable that such disclosure
    would have altered the Boards ruling on PGT Counsels adjournment request.
    But, in the end, this is irrelevant.  The critical point is that, on the facts
    underlying the Instructions Complaint, Mr. Gligorevic was not represented by
    counsel at the hearing, the Board erroneously thought that he was so
    represented and, as a result, the adjudicative process by which the Boards
    ruling was achieved cannot be said to have been fair.  A new Board capacity
    hearing is therefore necessary.

[108]

In light of this conclusion, it is technically unnecessary to
    address
amicus
other complaints of ineffective assistance.  However, I
    think it important to also comment briefly on the Concession Complaint.

(b)       Concession
    Complaint

[109]

PGT Counsels impugned closing submission, in its entirety, was
    as follows:

Ill just make a summary of my clients position.
    When asked why he was here, of course he said he was found NCR, he indicates
    that it was an agreement made by - - with him with his lawyer, and perhaps his
    fate would be better if he came to the hospital here and the criminal charges
    would be perhaps decreased or whatever.  Anyway, it was an agreement.  Thats
    his explanation of why hes here.
He does not think he has a mental illness
    and he does of course understand the benefits - - the explanation of the
    benefits and the risks of taking the medication.  Its just the doctor kept
    repeating that he understands all that, but he just doesnt understand how it
    applies to himself.  So he just doesnt want to apply it to himself, I guess
    again is the lack of insight
.
But otherwise, he seems positive if he
    returns to his country things will be okay.  So those are just the
    observations.  The written material speaks for itself and the testimony
.
    [Emphasis added.]

[110]

In the Superior Court Justices view, Counsels statement in
    closing submissions that the Appellant did not have insight into his illness
    was a correct reflection of the psychiatric evidence and the Appellants own
    evidence.  I see no error in this finding.  Dr. McMaster expressly testified
    that Mr. Gligorevic lacked insight into his mental disorder and Mr. Gligorevics
    own denial of any mental disorder during his testimony was confirmatory of this
    expert evidence.

[111]

I also think it unclear whether PGT Counsel actually conceded Mr.
    Gligorevics incapacity.  In her closing submission, immediately after her
    remarks concerning Mr. Gligorevics lack of understanding and insight as to how
    information relevant to treatment with antipsychotic medication applied to
    himself, PGT Counsel stated,
So those are just the observations
.  The
    written material speaks for itself and the testimony (emphasis added).  These
    comments can be read as suggesting that PGT Counsel was simply outlining her
    understanding of the evidence before the Board.

[112]

I accept that this submission by PGT Counsel was unfortunate.  It
    would, perhaps, have been preferable had she avoided highlighting the adverse
    aspects of Dr. McMasters opinion evidence in her closing submission.  But that
    is a matter of advocacy and professional judgment  not capitulation.

[113]

More important, the Boards sole reference to PGT Counsels
    closing submission appears in its recitation of counsels positions.  Situated
    as it is in the Boards reasons, there is no basis on which to conclude that
    the Boards reference to PGT Counsels closing submission indicates that its incapacity
    finding was driven by her comments.  This is confirmed, in my view, by the
    Boards ensuing analysis of Mr. Gligorevics treatment capacity.  In the
    analysis section of its reasons, the Board refers only to the evidence it
    regarded as compelling, eventually concluding that all of the evidence
    pointed to incapacity.  I therefore agree with the Superior Court Justices
    conclusion that: While [the Board] observed the remark made by Counsel in her
    closing, the Boards analysis rests on the evidence before it.

VI.      Disposition

[114]

For the reasons given, I would allow the appeal, set aside the
    Boards incapacity decision, and remit the matter to the Board for a new
    capacity review hearing.  Given that Mr. Gligorevic has remained untreated for
    several years due to this litigation, I would expect that the new capacity
    review hearing will be scheduled as soon as possible.  Finally, in light of the
    novelty of the issues raised on appeal and their significance to the
    administration of justice, I would award no costs of the appeal.

RELEASED:   FEB 21 2012                    E.A. Cronk
    J.A.

JL                                                                I
    agree John Laskin J.A.

I
    agree R.A. Blair J.A.

[1]
After his NCR verdict, additional charges were laid against Mr. Gligorevic
    arising from his alleged assault of his wife in 2002.  These additional charges
    remained outstanding at the time of the Board capacity hearing.

[2]
In 2009, s. 81(1)(a) was amended to read: the Board may direct Legal Aid
    Ontario to arrange for legal representation to be provided for the person:
Good
    Government Act, 2009
, S.O. 2009, c. 33, Sch. 18, s. 10(4).

[3]
Dr. McMasters counsel later clarified on the record that Mr. Gligorevic had
    been untreated since June, 2005.

[4]
The Protocol, established in 2000, provides guidelines for the perfection of
    criminal appeals involving allegations of ineffective assistance of counsel.

[5]

Starson
, at paras. 91, 92 and 112, makes the related point that the
    Board itself is unable to proceed solely on the basis of its view of a
    patients best interests.

[6]
Since the question of the Boards jurisdiction to appoint
amicus
was not
    in issue on this appeal, the matter was not fully argued before this Court.  We
    were informed by counsel, however, of an apparently recent Board practice to
    appoint
amicus
in appropriate cases.  This court has considered the
Charter
-based
    and non-
Charter
-based jurisdiction of the courts to appoint
amicus:
see
R. v. Imona-Russel
, 2011 ONCA 303, 104 O.R. (3d) 721.  The authority
    of the ORB to appoint
amicus
pursuant to s. 672.5(8) of the
Criminal Code
was addressed in
R. v. LePage
(2006), 217 O.A.C. 82 (C.A.) and
R. v.
    Runnalls
, 2011 ONCA 364, 106 O.R. (3d) 291.  As I noted earlier in these
    reasons,
amicus
was appointed by court order to assist on Mr.
    Gligorevics appeal to the Superior Court.  It is not uncommon for
amicus
to be appointed for such purposes on appeals to the Superior Court from the
    Board: see
Hillier v. Milojevic
, 2010 ONSC 435;
Cavalier v. Ramshaw
,
    2010 ONSC 5402.


COURT OF APPEAL FOR ONTARIO

CITATION:
Gutbir v. University
    Health Network, 2012 ONCA 66

DATE: 20120202

DOCKET: C53132

Weiler, Armstrong and Hoy JJ.A.

BETWEEN

Zmora Gutbir, a mentally incapable person,
    and Tamar Gutbir and Yuval Gutbir, minors,
by their     Litigation
    Guardian, Shaya Petroff, Avraham
    Gutbir and Atalyah Gutbir

Plaintiffs (Respondents)

and

University Health Network
and R. Derek Nicholson

Defendants (
Appellant
)

Paul J. Pape and Tanya A. Pagliaroli, for the appellant

Gavin MacKenzie, Hilik Y. Elmaliah and Mark Hines, for
    the respondents

Heard: January 10, 2012

On appeal from the judgment of Justice Darla A. Wilson of
    the Superior Court of Justice, dated December 10, 2010.

Weiler
    J.A.:

NATURE OF APPEAL

[1]

Mrs. Atalyah Gutbir was in the 42nd week of pregnancy.  On the morning
    of January 10, 1984, she went into labour and was admitted to Toronto General
    Hospital (Toronto General) between 7 and 8 a.m.  Baby Zmora Gutbir was born
    at 3:45 p.m., blue, silent and in critical condition.  Her brain was
    permanently damaged.

[2]

Following a trial with a judge and jury, the appellant was found to have
    breached the standard of care based on the manner in which it had monitored the
    foetal heart rate of the baby.  The jurys finding was that this breach meant
    that foetal heartbeat abnormalities that should have been detected were not.  [Detection]
    would have allowed an earlier intervention, (birth of the baby), which could
    have prevented permanent brain injury. According to the jury, Zmoras brain
    injury occurred because she had been deprived of oxygen over a period of
    between one and three hours while in utero.  She now lives with cerebral palsy.

[3]

The appellant appeals the jurys findings of both breach of the standard
    of care and causation.  Damages are not in issue.  For the sake of
    completeness, we note that the appellant was ordered to pay damages of
    $5,500,000 to the respondent, Zmora Gutbir, $625,000 to each of the respondent
    parents, Avraham and Ataylah Gutbir, and costs on a partial and substantial
    indemnity basis.

[4]

For the reasons that follow, we dismiss the appeal.

THE STANDARD OF REVIEW APPLICABLE TO A JURY VERDICT

[5]

It is well-established that a jury verdict may be set aside only if the
    verdict is so plainly unreasonable and unjust as to satisfy the Court that no
    jury reviewing the evidence as a whole and acting judicially could have reached
    it:
McCannell v. McLean
, [1937] S.C.R. 341, at p. 343.  Where there
    is some evidence to support the verdict, a jury will be accorded a high degree
    of deference.

ISSUES ON APPEAL

[6]

The appellant seeks an order setting aside the judgment and dismissing
    the action.  The appellant argues that there was no evidence upon which the
    jury could find that the appellant fell below the standard of care required of
    it in attending to the respondent.  More specifically, the appellant asserts
    that the nurse attending to Mrs. Gutbir did not fall below the standard of care
    in monitoring the foetal heart rate.  Alternatively, the appellant submits that
    any negligence on its part was found by the jury to be a lost chance to
    prevent permanent brain injury as opposed to a finding on the balance of probabilities
    that the appellant caused or materially contributed to Zmoras injuries.  The
    appellant submits there was no evidence that any negligence on its part caused
    or materially contributed to Zmoras injuries.

BACKGROUND MEDICAL EVIDENCE

[7]

By way of background, the purpose of monitoring the foetal heart rate
    is to determine the well-being of the foetus during labour.  A foetus can have
    accelerations of the heartbeat or decelerations, which are a slowing of the
    foetal heart rate during labour.

[8]

There are three types of decelerations:

(1)

Early decelerations are normal decelerations caused by pressure on the
      foetal head that occur during each contraction, after which the foetal heart
      rate quickly returns to normal;

(2)

Variable decelerations are abrupt decelerations that are usually caused
      by compression of the umbilical cord during a contraction, after which the
      foetal heart rate abruptly returns to normal;

(3)

Late decelerations are serious decelerations caused by a lack of oxygen
      reaching the foetal heart.  During a late deceleration, the foetal heart rate
      reaches its lowest point after the peak of the contraction and does not return
      to normal until more than thirty seconds after the conclusion of the
      contraction.  Late decelerations indicate that the foetus may be suffering from
      a critical lack of oxygen that can cause injury to, or sometimes death of, the
      foetus.

[9]

There are two methods of monitoring the foetal heart rate.  One is
    electronic foetal monitoring (EFM) in which an instrument is strapped to the
    mothers abdomen and measures the babys heart rate and the mothers
    contractions on a continuous basis.  The other method of monitoring the foetal
    heart rate is manual intermittent auscultation (IA).  In IA, a nurse palpates
    the uterus to determine when a contraction begins and listens to the foetal
    heart rate with an instrument for a period of one minute, beginning as soon as
    the contraction ends.  The nurse counts the number of heart beats and then
    calculates the foetal heart rate per minute.  In general, both methods met the
    standard of care at the relevant time in question.

The GUTBIRS EVIDENCE AT TRIAL

[10]

Mrs.
    Gutbirs evidence was that, after she was admitted to the hospital, an
    attending nurse came into her room every 30 to 40 minutes to listen to the foetal
    heart rate with a wooden stick for 10 to 15 seconds (
i.e
., IA).

[11]

Around
    1:00 p.m., Mrs. Gutbirs attending physician, Dr. Nicholson, ruptured her
    membranes with a metal instrument (
i.e
., artificial rupture of
    membranes (ARM)).  Upon rupture, a thick greenish fluid called meconium was
    present in the amniotic fluid.  This can be an indication of foetal distress or
    can be of no consequence.  The nurse continued to come into the room every 30
    to 40 minutes to listen to the foetal heart rate for 10 to 15 seconds with the
    wooden stick.  An electronic foetal heart monitor was never used and Dr.
    Nicholson did not return for the three hours that followed.

[12]

Approximately
    three hours after the ARM, the nurse and Dr. Nicholson returned to the room and
    told Mrs. Gutbir to push as the babys position was high in her uterus.  Neither
    indicated that the foetus had any heart rate irregularities.  Mrs. Gutbir was
    moved into another room without explanation.  The anaesthetist was called and,
    after topping up her epidural medication, he left.  Dr. Nicholson used forceps
    to deliver the baby.

[13]

After
    baby Zmora was born, a sense of panic set into the room.  The anaesthetist was
    immediately called.  The baby was intubated and given oxygen.  She was
    transferred to the Hospital for Sick Children several hours later.

[14]

After
    Zmoras birth on January 10, 1984, the Gutbir family returned to Israel.  They
    did not notify the appellant or Dr. Nicholson of any potential claim until 2001.
[1]
By that time, Toronto General had destroyed all records relating to the event.

[15]

The
    records from the Hospital for Sick Children are available.  The notes made by
    the attending doctors at that hospital state no continual monitoring, not
    monitored during labour and no record of monitoring during labour.  In
    addition, the transfer form that accompanied Zmora from Toronto General has
    nothing written in the box concerning Abnormalities of Labour or Signs of
    Foetal Distress.

[16]

Zmoras
    parents could not identify the attending nurse. Her identity remains unknown to
    this date.

[17]

Dr. Nicholson had no record or recollection of the event.  He
    could not say whether Zmora and her mother were his patients.  The claim and
    cross-claim against him were resolved before trial.

ISSUES

(1)

Was there a breach of
    the standard of care?

(a)

The preliminary
    issue: What did the jury find was a breach of the standard of care?

[18]

The
    appellant submits that the jury found one breach of the standard of care: IA
    was not done properly.  The respondent submits that the jury found two breaches
    of the standard of care: (1) IA was not done properly; and (2) EFM should have
    been used.

[19]

The
    questions put to the jury and their answers on the standard of care are as
    follows:

Question 1-A:  Have
    the plaintiffs satisfied you on a balance of probabilities that there was a
    breach of the standard of care on the part of the hospital/attending nurse who provided
    care to Atal[yah] and Zmora Gutbir?

Answer:  Yes.

Question 1-B:  If
    yes, please state the particulars of negligence and provide clear and specific answers.

Answer:  The
    standard of care in 1984 indicates that continuous electronic foetal monitoring
    should be strongly considered with high-risk cases to determine the well-being
    of the foetus. The risk factors include on arrival maternal age, 35 plus, and
    post-term gestation; after arrival, meconium stained liquid, artificial rupture
    of membranes and epidural. Therefore, continuous electronic foetal monitoring should
    have been used.

Evidence was
    provided that nurses interpret a guideline of strongly recommend as [sic] what
    they should do.

Witnesses
    indicated that intermittent auscultation, (I.A.), could also be used if done
    properly. Failure to detect foetal heart rate irregularity through I.A. is indicative
    that I.A. was not done properly, which would also constitute a breach of the
    standard of care.

Question 2-A:  If
    your answer to question 1-A is yes, did the hospital's (attending nurse's), breach
    of the standard of care cause or materially contribute to the injuries of Zmora
    Gutbir?

Answer:  Yes.

Question 2-B:  If
    your answer to question 2-A is yes, how did the hospital's (attending nurse's),
    breach of the standard of care cause or materially contribute to Zmora Gutbir's
    injuries? Please provide clear and specific answers.

Answer:  On the
    balance of probabilities Zmora's brain injury was caused by prolonged partial hypoxic
    insult. This would have taken place one to three hours before birth. The
    reasons for this conclusion include pattern of brain injury shown on Zmora's
    MRI consistent with hypoxic ischemia. (all witnesses indicated the pattern
    possible with H.I.)

Related kidney
    problems, brain edema, timing consistent with hypoxic ischemia in period prior
    to birth. Presence of lactic acid indicates that not all energy sources had
    been depleted. Diagnosis of professionals who examined and treated Zmora was
    prolonged partial hypoxic ischemia. The conclusion of prolonged partial hypoxic
    ischemia suggests that there was a window of opportunity to intervene earlier.
    There is a period of one to two hours of partial asphyxia which does not result
    in permanent brain injury. If the standard of care was not breached, the foetal
    heartbeat abnormalities would have been detected. This would have allowed an
    earlier intervention, (birth of the baby), which could have prevented permanent
    brain injury.

The alternate
    theory that hypoglycemia caused the brain injury is not accepted on the balance
    of probabilities because no recording of growth discordance by any doctor who
    saw Zmora. None of the treating doctors identified hypoglycemia as a cause of
    the injury. Treatment for low blood sugar was quite limited and the situation
    corrected quite quickly. Hypoglycemia by itself rarely causes brain damage, but
    in combination with hypoxic ischemia, can cause injury.

Therefore, even
    in hypoglycemia situations, hypoxic ischemia is a contributing factor.

[20]

We
    agree with the respondent that the jury found that the standard of care had
    been breached in two respects: failure to perform EFM and failure to perform IA
    properly.  The jurys finding that there were two breaches of the standard of
    care is supported by the concluding sentence of the jurys answer to question
    1-B in which it stated, Failure to detect foetal heart rate irregularity
    through I.A. is indicative that I.A. was not done properly, which would also
    constitute a breach of the standard of care (emphasis added).  The word also
    indicates that the jury had already found a breach of the standard of care in
    relation to EFM.

(b)

Was there
    evidence as to the standard of care for EFM and whether it had been breached?

[21]

There
    is no issue that the attending nurse has the responsibility for monitoring the
    foetal heart rate.  The standard of care issue is based on how that monitoring
    should have been done.  Two experts, Dr. Carson and Nurse Rosen, gave evidence
    in this respect.

[22]

Dr.
    Carson is the head of obstetrics at a hospital in Regina, and the director of
    maternal foetal medicine at the University of Saskatchewan.  He was qualified
    to give expert evidence concerning foetal heart rate monitoring.  Dr. Carson
    testified that both EFM and IA were acceptable methods in 1984 and met the
    standard of care.  However, EFM should have been used in this case as several
    high-risk factors were present.  Had EFM been used, irregularities in Zmoras
    heart rate would have been detected, indicating to the nurse and Dr. Nicholson
    that immediate intervention was required.

[23]

In
    addition to the evidence of Dr. Carson, the finding that the standard of care
    required EFM is supported by the evidence of Nurse Rosen.  Nurse Rosen was
    qualified as an expert in obstetrical nursing entitled to provide an opinion on
    the standard of care.  She was an instructor at the Victoria Hospital in
    obstetrics and gynecology and rose to become the senior director nursing, division
    of nursing, Victoria Hospital.  Nurse Rosen testified that EFM was required
    because of the presence of the following risk factors:  this was a post-term
    pregnancy; Mrs. Gutbir was older, at 35 years of age; Mrs. Gutbir had an
    epidural; and Mrs. Gutbir had membranes that were stained with meconium.  When
    these risk factors were present, a nurse had no discretion to deviate from the
    applicable guidelines, which mandated the use of EFM.  Meconium can be an
    indication that the baby is stressed, so a nurse must take further precautions
    and pay close attention to the babys heart rate.  The attending nurses
    failure to use EFM when it was clearly indicated in these circumstances was a
    breach of the standard of care.

[24]

As
    there was evidence as to the standard of care for EFM and evidence to support
    the jurys verdict that the standard of care for EFM had been breached, the jurys
    verdict in this regard is not plainly unreasonable.

(c)

Was there
    evidence as to the standard of care for IA and whether it had been breached?

[25]

The
    trial judge ruled that Dr. Carson could not give evidence as to the standard of
    care of a nurse in 1984.  He was, however, qualified as an expert on the issue
    of foetal heart rate monitoring.  While he did not describe how IA was to be
    done in terms of specific technique, he did talk about the timing of when it
    was to be done.

[26]

Nurse
    Rosen opined that the attending nurse in this case also fell below the standard
    of care in failing to properly auscultate the foetal heart rate.  After an objection
    by defence counsel that she was giving an opinion outside her report, the jury
    was excused and the trial judge eventually ruled that Nurse Rosen could not
    offer an opinion as to what the standard of care was for IA.  When the jury
    returned, the trial carried on.  No request was made for a direction to the
    jury not to consider the initial statement by Nurse Rosen and no direction was
    given to this effect.

[27]

When
    the trial judge summarized the evidence of Nurse Rosen, she stated that Nurse
    Rosens opinion was that the attending nurse had failed to auscultate the
    babys heart rate appropriately.  There was no objection to the trial judges
    charge to the jury.

[28]

The
    appellant submits that objection should have been taken and that the two
    rulings made it clear neither Dr. Carson nor Nurse Rosen could give evidence as
    to the standard of care for IA.  Thus there was no evidence as to the standard
    of care for IA.

[29]

There
    are two answers to this submission.  First, having regard to the jurys finding
    that the failure to use EFM was a breach of the standard of care, the finding
    that the standard of care respecting IA was also breached is irrelevant.

[30]

Second,
    contrary to the appellants submission, it was open to the jury to conclude on
    the evidence that the nurse failed to conduct IA properly based on the
    infrequency in which she assessed Zmoras heart rate.

[31]

Dr.
    Carson was qualified to, and did, give evidence as to the frequency with which
    IA should be performed.  The objection sustained by the trial judge was to Dr.
    Carson giving evidence as to the standard of care of a nurse.  Thus, quite
    apart from Nurse Rosens evidence, there was evidence from which the jury was
    entitled to infer that the attending nurse fell below the standard of care in
    the manner she administered IA.

[32]

Dr.
    Carson testified that, when conducting IA properly, foetal heart rate
    monitoring should be done every 15 to 30 minutes during the first stage of
    labour and every five minutes in the second stage of labour.   Both Atalyah and
    Avraham Gutbirs evidence was that, during the second stage of labour, the
    nurse did not conduct measurements any more frequently than every 30 minutes as
    she had done during the first stage.  There is support for this evidence in the
    notes made by the attending doctors at the Hospital for Sick Children which
    state no continual monitoring, not monitored during labour and no record
    of monitoring during labour.

[33]

The
    appellant submits that because the jury made no mention of timing respecting
    when IA had to be done, the jury rejected Dr. Carsons evidence on timing.

[34]

We
    disagree.  In his evidence, Dr. Carson referred to the frequency with which IA
    needed to be done.  He equated the word properly with timing.  In adopting
    the word properly, implicitly, so did the jury.

[35]

The
    jurys findings are not plainly unreasonable.  The appellants arguments
    respecting the standard of care are dismissed.

(2)

Was there evidence of
    causation?

[36]

The
    appellant submits that there is no evidence the attending nurse did not detect
    signs of foetal distress and alert Dr. Nicholson.  The appellant further
    submits that the jurys verdict ignores the fact that the nurse was not charged
    with determining the time and method of delivery; Dr. Nicholson was.  The
    appellant submits that the nurse could have performed IA properly, heard the
    decelerations and taken all appropriate measures, only to have the doctor fail
    to deliver the baby in time to prevent injury.  Instead the jury reasoned
    improperly from the result that the attending nurses actions must have been negligent.

[37]

The
    appellants submissions ignore Dr. Carsons testimony that, if EFM had been
    used or IA had been done properly, the attending nurse would have detected
    signs of foetal distress.  From this evidence, the jury was entitled to infer that
    the attending nurse breached the standard of care.

[38]

Contrary
    to the appellants arguments, there is evidence the attending nurse did not
    detect signs of foetal distress.  Perhaps the strongest piece of evidence in this
    regard is that the transfer form that accompanied Zmora from Toronto General had
    nothing written in the box concerning Abnormalities of Labour or Signs of
    Foetal Distress.

[39]

There
    is further evidence from which the jury could infer that neither the attending
    nurse nor Dr. Nicholson was aware of the distress of the foetus.  Dr.
    Nicholson did not express any concern with respect to foetal distress prior to
    delivery.  He did not have the anaesthetist stay in the delivery room as Dr.
    Carson testified one might expect if there was a risk of having to resuscitate
    Zmora.  Moreover, the Gutbirs testified that everyone panicked only after
    Zmora was born.

[40]

Whether
    one applies the but for test or the material contribution test, the
    appellant acknowledges that a tortfeasor cannot excuse itself from liability
    simply by pointing out that, in addition to the tortfeaser, another person
    caused or materially contributed to the plaintiffs injuries.  The appellant
    argues, however, that there was no evidence that the nurses breach of the
    standard of care caused or materially contributed to Zmoras brain injury.

[41]

Again,
    we disagree.

[42]

We
    begin by noting that, on appeal, the appellant does not take issue with the
    jurys finding that, on a balance of probabilities, Zmoras permanent brain
    injury was caused by prolonged partial hypoxic insult or deprivation of
    oxygen.

[43]

While
    there was no direct evidence of causation, there is evidence from which the jury
    could properly infer a causal connection.  Dr. Carson testified that, if EFM had
    been used or IA had been done properly, the distress of the foetus would have been
    detected, detection would have prompted intervention, and intervention would
    likely have been beneficial in this case.  The jurys answer tracks Dr.
    Carsons evidence which indicates that they accepted it.  The evidence of Dr.
    Hill, a paediatric neurologist, was that it takes one or two hours of hypoxic
    ischemic insult before injury results.  The extent of the injury increases as
    time goes on.  The evidence of Dr. Carson and Dr. Hill establishes that, had
    the standard of care with respect to foetal monitoring not been breached, the
    distress of the foetus would have been detected and, once detected, there was
    sufficient time to deliver Zmora before injury to her brain resulted.

[44]

Further,
    given the evidence that the attending nurse fell below the standard of care
    with respect to foetal heart rate monitoring, and the jurys rejection of the
    alternate theory that hypoglycaemia was a major contributor to Zmoras brain
    damage (which is not contested on appeal), the nurses breach is the only reasonable
    explanation for the cause of Zmoras brain injury.

[45]

The
    appellant further submits that the jury only found that any negligence on its
    part was found by the jury to be a lost chance to prevent permanent brain
    injury as opposed to a finding on the balance of probabilities that the
    appellant caused or materially contributed to Zmoras injuries.  The
    appellants submission is based on the following sentence in the jurys answer
    to question 2-b (
i.e.
, how the attending nurses breach of the
    standard care caused or materially contributed to the injuries of Zmora): [Detection
    of foetal heartbeat abnormalities] would have allowed an earlier intervention,
    (birth of the baby), which could have prevented permanent brain injury.  While
    this sentence taken in isolation can be read in the manner submitted by the
    appellant, when the jurys answers to the questions are read as a whole and in
    conjunction with Dr. Carsons evidence, we are satisfied the jurys finding was
    based on a balance of probabilities.

[46]

Indeed,
    the jurys answer to the question on causation begins with, On the balance of
    probabilities, Zmoras brain injury was caused by prolonged partial hypoxic
    insult.  This would have taken place one to three hours before birth.  The
    wording of the sentence relied on by the appellant reflects the jurys
    understanding that the longer the negligent situation prevailed, the more
    likely it was that serious permanent brain injury would result.

[47]

Finally,
    we reject the appellants submission that in order for causation to be
    established evidence as to exactly when irregular foetal heart beat began was
    required.   Having regard to the evidence and the jurys answers to the two
    questions, if, as required by the standard of care, EFM had been used, or IA
    done after a contraction for the required length of time and with the required
    frequency, it is likely that the irregularities in the foetal heartbeat would
    have been noticed at a stage when permanent brain injury could have been
    prevented.  In other words, the injuries were preventable on a balance of
    probabilities.

[48]

Accordingly,
    the appeal is dismissed.

[49]

The
    parties have agreed that in the event the respondents were successful, costs in
    the amount of $50,000 inclusive of disbursements and all applicable taxes
    should be awarded.  So ordered.

Released: Feb. 2, 2012                                          K.M.
    Weiler J.A.

KMW                                                                I
    agree Armstrong J.A.

I
    agree Alexandra Hoy J.A.

[1]
Section
    47 of the then
Limitations Act
, R.S.O. 1980, c. 240

provided that
    where a person entitled to bring an action is, at the time the cause of action
    accrues a minor, the period within which the action may be brought shall be
    reckoned from the date when such person became of full age.