2021 QCCA 1531, 2021 QCCA 1531

S.F. c. CIUSSS de Centre-Ouest-de-l'Île-de-Montréal - Hôpital général juif - Sir Mortimer B. Davis 2021 QCCA 1531 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029587-219 (500-17-116811-210) DATE: October 15, 2021 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. GENEVIÈVE COTNAM, J.A. STÉPHANE SANSFAÇON, J.A. S. F. APPELLANT – Plaintiff v. CIUSSS DU CENTRE-OUEST-DE-L’ÎLE-DE-MONTRÉAL - HÔPITAL GÉNÉRAL JUIF-SIR MORTIMER B.

DAVIS LOUISE MINER RESPONDENTS – Defendants JUDGMENT [ 1 ] The Respondents apply for the dismissal of the appeal from the judgment rendered on May 20, 2021 by the Superior Court, District of Montreal (the Honourable Madam Justice Chantal Tremblay), which judgment authorizes the Respondents to provide the Appellant with the care required by his state of health, given his incapacity to consent thereto and his categorical refusal. [ 2 ] The Application should be allowed, first because the notice of appeal was filed after the expiry of the time limit (the appeal period, which was five days from the notice of judgment) expired on May 31, 2021, while the notice of appeal was filed on June 30, 2021), but also because, even if the notice of appeal had been filed in time, the appeal would have been doomed to fail. [ 3 ] In essence, the Appellant alleges two grounds of appeal in his notice of appeal. [ 4 ] The first is that the judge erred in concluding that the Appellant had categorically refused to consent to the care required by his state of health, because he had previously agreed, and could again possibly agree, to take medications other than those the physicians want to administer to him.

This ground is not valid: The judge heard the testimony of the Appellant, as well as the testimony of his mother and brother and that of Dr. Markovitz and of Dr. Geagea, a psychiatrist, and she determined from this evidence that the Appellant’s behaviour with respect to taking medication amounts to a categorical refusal.

Since this is a matter of assessing the evidence, which this Court must approach with great deference, and since the Appellant has not shown a palpable and overriding error on the part of the judge, this ground has no reasonable chance of success. [ 5 ] The Appellant’s second ground set out in his notice of appeal is that the judge erred in denying him the right to make his own choice as to the medication he considers appropriate for his state of health, particularly since the judge allegedly confused the taking of medication with the giving of care mentioned in

article 11 C.C.Q . Contrary to the Appellant’s contention, there is no doubt that the primary purpose of the order the Superior Court can make under

article 16 C.C.Q. is to monitor the lawfulness of the program of care proposed by the Respondents in accordance with the criteria set out in

article 12 C.C.Q. ( F.D. c. Centre universitaire de santé McGill (Hôpital Royal-Victoria) , 2015 QCCA 1139 , para. 54 ) and that, in this context, the notion of care includes the taking of medication (Dominique Goubau and Anne-Marie Savard, Le droit des personnes physiques , 6th ed., Montreal, Yvon Blais, 2019, para. 108; Robert P. Kouri and Suzanne Philips-Nootens, L’intégrité de la personne et le consentement aux soins , 4th ed., Montreal, Yvon Blais, 2017, para. 303). FOR THESE REASONS, THE COURT: [ 6 ] GRANTS the application to dismiss the appeal, without legal costs; [ 7 ] DISMISSES the appeal, without legal costs. FRANÇOIS DOYON, J.A.

GENEVIÈVE COTNAM, J.A. STÉPHANE SANSFAÇON, J.A. S. F. Unrepresented Mtre Marie-Nancy Paquet LAVERY, DE BILLY For Respondents Date of hearing: September 20, 2021