) ) JACQUELINE ELDER Appellant – v. –, 2017 ONSC 1151

CITATION : Elder v. Klukach, 2017 ONSC 1151 DIVISIONAL COURT FILE NO.: 059/17 DATE: 20170216 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) JACQUELINE ELDER Appellant – and – DR. JOHN KLUKACH Respondent ) ) ) ) ) ) ) ) ) ) ) ) Jacqueline Elder acting in person Ken J. Berger acting for the proposed Amicus Kendra A. Naidoo , for the Respondent ) ) HEARD at Toronto: February 16, 2017 KITELEY J. ( Orally ) [ 1 ] On September 5, 2016, the Consent and Capacity Board made an order confirming Ms. Elder’s involuntary status and confirming her incapacity to consent to treatment. At that time, Ms.

Elder was receiving anti-psychotic medication. [ 2 ] Ms. Elder instructed Mr. Berger to appeal. He filed a notice of appeal and a notice of constitutional question alleging violation of many of Ms. Elder’s charter rights. [ 3 ] Counsel for Ms. Elder and for Dr. Klukach attended a case conference with McEwen J. on December 6, 2016 at which time he scheduled a full day hearing of the appeal for April 27, 2017. [ 4 ] Mr.

Berger tells me today, he has not yet served the Attorney General with the notice of constitutional question but intends to do so 60 days in advance of April 27, 2017 so as to ensure that the hearing proceeds on that date. He tells me that he is close to refining the nature of the constitutional question or questions. [ 5 ] Legal Aid has given a certificate to Ms. Elder for the appeal. [ 6 ] Ms.

Elder’s psychiatrist wanted to change her medication to a different anti-psychotic medication but he required approval pending the appeal from the order of the Consent and Capacity Board. [ 7 ] On December 6, 2016 when McEwen J. set the date for the hearing of the appeal from the Consent and Capacity Board, he also set January 20, 2017 as the date for counsel on behalf of Dr.

Klukach to bring a motion for leave to implement a medication change. [ 8 ] On January 20, 2017, Akbarali J. heard that motion including the cross-examination of the witness on behalf of the moving party. [ 9 ] On January 27, 2017, Akbarali J. released an endorsement in which she authorized the psychiatrist to change the medication as requested. [ 10 ] On Ms. Elder’s instructions, Mr.

Berger filed a notice of motion for leave to appeal from the decision of Akbarali J. [ 11 ] Legal Aid will not provide a certificate for the motion for leave and other motions related to the leave motion in the Divisional Court. [ 12 ] The issue before me today is whether this Court should appoint amicus curiae for four steps:

(1) This motion to appoint amicus.

(2) The motion for leave to appeal the order of Akbarali J.

(3) If leave is granted, the appeal of the order of Akbarali J., and

(4) A motion for stay of the order of Akbarali J. pending the appeal. [13] The evidence before me is that on January 30, 2017, three days after the release of the endorsement of Akbarali J., thepsychiatrist changed the medication as he was authorized to do. [14] In the notice of motion for leave to appeal to the Divisional Court, the following appears on page 2, para. 2: “Should LegalAid Ontario refuse to fund this appeal an Order of Appointment of Counsel or Amicus to assist with this motion and an extension of timeto perfect the appeal and for the motion to be heard.” [15] After filing the motion for leave to appeal, Mr.

Berger contacted the Divisional Court and asked for an early hearing on thequestion of amicus. Nordheimer J. authorized that to happen and it was scheduled for today. [16] When I reviewed the file, I was concerned that the only request for amicus was in para. 2 in the motion for leave to appealwhich I have just read, and I instructed court staff to contact Mr. Berger and require him to serve a notice of motion specifically askingfor the appointment of amicus curiae and that he serve that on the Attorney General.

He did that and it was served on the Office of theAttorney General on the evening of Wednesday, February 15, 2017 namely, last evening. [17] On my request, while I held the matter down, Mr. Berger contacted the Crown Office. He then reported his conversationwith someone at the Crown Office who confirmed receipt of the notice of motion. Based on that report, I am satisfied the Crown Officewill not attend but will of course respect the order if made. [18] The issue is what role the amicus will play. In R. v. Cairenius, (ON SC), [2008] O.J. No. 2323, Durno J.outlined at some length the evolving role of the amicus.

In Bon Hillier v. Milojevic, D.M. Brown J. at para. 16 referred to that passagefrom the decision of Durno J. and he summarized what he took from Durno J.’s decision namely that the role of an amicus will varyaccording to the circumstances of the particular case with amicus potentially playing roles that range along a spectrum from remindingthe court of some matter or law that may have escaped its notice through representing unrepresented interests before the court to actingin a way that is tantamount to counsel for a person. [19] Mr.

Berger asks that he be appointed as amicus and that his role be the last two of those referenced in para. 16 of D.M. BrownJ.’s decision. [20] Counsel for Dr. Klukach does not oppose the appointment of amicus but does assert that based upon the reasons for decisionin Ontario v. The Criminal Lawyers Association,

(2013) SCC 43, that the amicus ought not to take on the role of counsel. [21] Mr. Berger has been Ms. Elder’s counsel and will continue to be her counsel in the appeal of the Consent and Capacity Boardorder. I am satisfied that it is in Ms. Elder’s best interest that he be appointed amicus in order that these matters can proceed quickly andalternate counsel need not take the time to get up to speed. Because Mr.

Berger has a past and a current solicitor-client relationship withrespect to the Consent and Capacity Board, it is important to define his role. [22] Because he has and will be her counsel on the Consent and Capacity Board appeal, it will be a professional challenge toprevent him from acting in that role in this Court. I accept Mr. Berger’s submission that he should be expected to do two of theprofessional services referred to in para. 16 of D.M.

Brown J.’s decision namely as follows: “…representing unrepresented interestsbefore the court and acting in a way that is tantamount to counsel for a person.” In other words, he is not acting solely as her counsel butmust fulfill the traditional role of friend of the Court. [23] Rule 63.02(1)(

b) allows the motion for stay pending the motion for leave. However, after hearing submissions from counsel,the most efficient use of judicial and legal resources is if both are heard at the same time. To do that, I will depart from the now currentmethod of processing of leaves to appeal which are only done on paper. [24] Mr. Berger was keen to bring his motion for stay next week but as indicated, a physician was cross-examined on January 20,2017 and the transcript is not yet available.

Realistically, the motion for stay and the combined motion for leave cannot be heard untilthe week of February 27, 2017 and unfortunately, Ms. Naidoo is not available. She has confirmed that one of her colleagues will beavailable in order to deal with those two motions. ORDER TO GO AS FOLLOWS:

(1) Mr. Berger is appointed as amicus curiae in the Divisional Court for the following matters: this motion; leave to appealdecision of Akbarali J. dated January 27, 2017; if leave is granted, the appeal; and stay pending appeal.

(2) The motion for leave to appeal and for stay shall be heard March 2, 2017 at 2:30 p.m. before me.

(3) Mr. Berger’s motion materials including factum and book of authorities shall be served and filed by Monday, February 27,2017 at 2:00 p.m.

(4) Responding materials shall be served and filed by March 1, 2017 at 2:30 p.m.

(5) Attorney General shall pay for Mr. Berger’s legal services and disbursements arising from this order.

(6) Mr. Berger’s role as amicus curiae is described as follows: (

a) to represent unrepresented interests before the court; and (

b) to act in a way that is tantamount to counsel for Ms. Elder. [ 25 ] I believe that concludes the order that I have made. Before ending, however, I wish to refer back to the issues that are before the court on April 27, 2017. [ 26 ] During the course of hearing submissions on the amicus motion today, I queried with Mr. Berger whether it would be more in his client’s best interests if the appeal from the Consent and Capacity Board were accelerated and therefore the Divisional Court steps need not be taken. Mr.

Berger has contemplated that over a recess and has arrived at the conclusion that it is his client’s best interest to pursue the leave to appeal the motion for stay pending the appeal while leaving the Consent and Capacity Board appeal intact at the end of April 2017. ___________________________ Kiteley J. Date of Reasons for Judgment: February 16, 2017 Date of Release: February 23, 2017 CITATION : Elder v. Klukach, 2017 ONSC 1151 DIVISIONAL COURT FILE NO.: 059/17 DATE: 20170216 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: JACQUELINE ELDER Appellant – and – DR.

JOHN KLUKACH Respondent ORAL REASONS FOR JUDGMENT kiteley J . Date of Reasons for Judgment: February 16, 2017

Date of Release: February 23, 2017