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Mootness - Factors Still to Hear (3). Naus v. Kennedy
In Naus v. Kennedy (Ont CA, 2025) the Ontario Court of Appeal considered a (second) appeal, this from "an order of the Superior Court of Justice confirming a decision of the Consent and Capacity Board (the “Board”) that he is incapable of consenting to treatment and that he should be subject to a community treatment order requiring him to take antipsychotic medication".
Here the court decides to hear an issue despite it's mootness:[32] The community treatment order is also moot because it has not been in effect since February of 2024. An appeal from the community treatment order will have no practical effect on Mr. Naus’s treatment: Dickey v. Alexander, 2016 ONCA 961, at para. 8; A.N. v. Guimond, 2020 ONSC 6751, at para. 14; Capano v. Geagea, 2017 ONSC 2983, at para. 49; Carty v. Levy, 2015 ONSC 2200, at paras. 44 and 52.
(2) The court should exercise its discretion to decide the appeal from the community treatment order
[33] In order to decide whether to hear a moot appeal, the court is to consider 1) whether there remains an adversarial context, 2) concerns over judicial economy and 3) the court’s adjudicative role: Borowski, at pp. 358-63. The court is to consider the extent to which all three rationales are present. This is not meant to be a mechanical process.
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[35] However, I agree with Mr. Naus that this court should exercise its discretion to hear the appeal from the community treatment order. As mentioned, there remains an adversarial context. In addition, the appeal from the community treatment order raises an important issue regarding how s. 15(1.1) of the Mental Health Act is applied in the context of community treatment orders: specifically, whether successful treatment prior to a current hospitalization is required before the Board can make a community treatment order or whether successful treatment during the hospitalization is sufficient. Notably, it appears that the Board’s own jurisprudence is inconsistent on this issue: see, for example, V.M. (Re), at pp. 12-13, holding that treatment received on a first hospital admission leading up to the hearing was not “previous treatment”, in contrast with L.B. (Re), 2012 CanLII 62547, at p. 14, and H.S. (Re), 2021 CanLII 141803, at p. 9, both holding that “previously” could refer to treatment that occurred during the current hospitalization. In A.P. (Re), 2021 CanLII 24677, at p. 14, the Board registered the inconsistency and noted that “[t]his question has not been definitively settled in a court of law.” This issue is elusive of review because community treatment orders are only valid for a period of six months: s. 33.1(11) of the Mental Health Act. As this case illustrates, it would be exceptional for an appeal to reach this court within that time period.
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