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Administrative - Amicus Curiae. B.V. v. Knox
In B.V. v. Knox (Ont CA, 2023) the Court of Appeal considered a second court appeal from a decision of the Consent and Capacity Board which upheld the appellant's "physician’s conclusion that she is incapable of consenting to treatment for antipsychotic medications and should be held under involuntary status".
In these quotes, the court considered whether the tribunal had breached procedural fairness by not appointing amicus curiae:[18] The Board applied the correct test for capacity to consent to treatment. The Board has the discretion to direct the form of the hearing and limit both evidence and submissions to provide a fair, just, and expeditious hearing. The hearing had already been adjourned six times, and the Board made the discretionary decision to continue without a further adjournment to appoint amicus.
[19] The proceedings were not unfair. The Board outlined the procedure for B.V. She had access to counsel throughout the hearing. With Mr. Hiltz present, she was allowed equal time to provide evidence, cross-examine, and make submissions. Mr. Hiltz was asked if he wished to make submissions. All three panel members asked questions. The appellant was reminded multiple times to focus on the issues before the Board. She was warned that if she did not stop interrupting the proceedings, she would be placed on mute.
[20] The appointment of amicus is meant to assist the Board, and the decision to appoint amicus is discretionary. The Board was not required to appoint amicus, and there was no unfairness in declining to do so. There is also no evidence that the decision would have been different had amicus been appointed. Mr. Hiltz was present even after being discharged by B.V. She had access to his assistance throughout the hearing including while cross-examining Dr. Knox and making submissions. There is a presumption of capacity to retain and instruct counsel and B.V. wanted to represent herself.
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