COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

N.E.T. v. British Columbia (Attorney General),

 

2018 BCCA 380

Date: 20181017

Docket: CA44844

Between:

N.E.T.

Appellant

(Plaintiff)

And

Government of British Columbia, Interior Health Authority,
Royal Inland Hospital, Kamloops Mental Health & Substance Use,
Dr. Kurt Buller, Dr. James Mabee

Respondents

(Defendants)

Restriction on publication:  An order has been made pursuant to the inherent jurisdiction of the Supreme Court that prohibits N.E.T.’s name, or any information tending to reveal the identity of N.E.T. as connected with this action, from being published, broadcast or divulged.

Before:

The Honourable Mr. Justice Willcock

The Honourable Madam Justice Fenlon

The Honourable Madam Justice Fisher

On appeal from:  An order of the Supreme Court of British Columbia, dated September 29, 2017 (N.T. v. British Columbia, 2017 BCSC 1742,
Kamloops Docket 53209).

Appellant appearing in person:

N.E.T.

Counsel for the Respondent Attorney General of British Columbia:

F. de Lima
D. Suntjens

Counsel for the Respondents Interior Health Authority, Royal Inland Hospital and Kamloops Mental & Substance Use:

A.C. Fraser
D.J. Bell

Counsel for the Respondents Dr. Kurt Buller and Dr. James Mabee:

D. Pilley
K. Rose

Place and Date of Hearing:

Vancouver, British Columbia

September 6, 2018

Place and Date of Judgment:

Vancouver, British Columbia

October 17, 2018

Written Reasons by:

The Honourable Madam Justice Fenlon

Concurred in by:

The Honourable Mr. Justice Willcock

The Honourable Madam Justice Fisher


 

Summary:

The appellant was an involuntary patient under the Mental Health Act, R.S.B.C. 1996, c. 288 for approximately 13 years. Upon discharge he brought an action seeking damages for negligent certification and treatment. At trial, his claim was dismissed as being statute barred under the former Limitation Act, R.S.B.C. 1996, c. 266. On appeal the appellant argued that his treatment gave rise to an action for assault or battery within a relationship of dependency, for which there is no limitation period under s. 3(1)(k)(ii) of the new Limitation Act, S.B.C. 2012, c. 13. Held: appeal dismissed. Having been deemed to consent to treatment pursuant to his certification under the Mental Health Act, it was not an assault or battery when the appellant was compelled to consume medication against his will. His claim does not fall within s. 3(1)(k)(ii) of the new Limitation Act and is therefore statute-barred.

Reasons for Judgment of the Honourable Madam Justice Fenlon:

[1]            The main issue on appeal is whether treatment of an involuntary patient under the Mental Health Act, R.S.B.C. 1996, c. 288, can give rise to an action for assault within a relationship of dependency that is not subject to a limitation period.

Background

[2]            From 2000 to early 2013, the appellant was certified by the respondent physicians as an involuntary patient under the Mental Health Act on an almost continual basis. He received treatment at the respondent Hospital and in the community from the Kamloops Mental Health & Substance Use (“MHSU”), both of which are operated by the respondent Interior Health Authority.

[3]            For most of the period of certification, the appellant was compelled to consume a psychotropic medication while in hospital and as a condition of being on leave in the community. The appellant vociferously objected to his mental health diagnosis and to the prescribed treatment. From the outset, he maintained that he was of sound mind and that the respondent doctors had misdiagnosed him, thereby causing him significant harm: the physical side effects of the medication and the stigma associated with mental illness.

[4]            The appellant sought a review of his certification by the Mental Health Review Panel in June 2011. He subsequently petitioned the Supreme Court of British Columbia for a discharge order under ss. 33(2) and (8) of the Mental Health Act, arguing there was insufficient reason and legal authority for his certification. That petition was dismissed in August 2012; Mr. Justice Greyell found the appellant’s behaviour supported his continued involuntary detention. An appeal was taken from that decision but later abandoned.

[5]            The appellant took a number of additional steps to challenge his certification, including:

·        Maintaining a vigorous letter-writing campaign from February 2002 onwards with the goal of having the respondent physicians reconsider their diagnosis and treatment of him;

·        Authoring a report to the Ombudsperson in July 2008; and

·        Authoring a request for review of legal process for presentation to the Attorney General of British Columbia in December 2012.

[6]            On February 19, 2013, the appellant was discharged from involuntary patient status after his family expressed concern that certification was diminishing his quality of life, and proposed a plan to support him in the community. The respondents had no further direct contact with the appellant. About three years later, on July 12, 2016, the appellant commenced the underlying action against the respondents seeking damages for negligent certification and treatment under the Mental Health Act.

[7]            The appellant applied for judgment by way of summary trial. The respondents in turn collectively applied by way of summary trial for an order dismissing the action on the basis that it was barred by the two-year limitation period applicable to personal injury claims.

At trial

[8]            The main issue at trial was whether the appellant had established entitlement to a postponement of the limitation period under s. 6 of the Limitation Act, R.S.B.C. 1996, c. 266 (the “Former Act”) in force when the cause of action first arose. He made three broad submissions in support of postponement. First, he contended the misdiagnosis and subsequent failure to withdraw it was an ongoing tort which only ceased when MHSU formally closed its file in September 2015, well within the two-year limitation period. The judge described this submission as follows:

[29]      The reason that [the appellant] considers the “interface” with IHA as continuing past his discharge in February 2013, is that IHA’s agency MHSU kept its file open until September 1, 2015. In that interval, the MHSU file recorded (i) that MHSU sent a letter to N.T. on April 18, 2013 notifying him that his MHSU file would be closed by his case manager, [H.H.]; (ii) that on two occasions in March 2014, the RCMP had requested assistance from MHSU in regard to N.T., and MHSU had made decisions not to provide a home visit to him (iii) in September 2014, a note was made that N.T. was lost to contact based on the fact that he had not contacted MHSU in recent months; and (iv) on September 1, 2015, MHSU attempted an emergency home visit to N.T. after receiving concerns from the RCMP in regards to him, but he was no longer resident at the address that the RCMP had provided to MHSU.

[30]      N.T. invited the court to view this continuation of the MHSU file activity as a continuation of their pre-discharge actions which extended the commencement of the limitation period in respect of MHSU and IHA to September 1, 2015.

[9]            Second, the appellant submitted that the limitation period should be postponed because he was not aware of the full extent of his injuries while he was pursuing other avenues to resolve the misdiagnosis, including approaching the Ombudsperson, the Attorney General, his MLA, and conducting a vigorous letter-writing campaign to his doctors. The appellant said that he did not come to a full realization of the harm caused to him, the futility of these efforts, and the need to take legal action, until he was overcome with emotion in March 2016 while moving a box containing correspondence on this issue.

[10]        Third, the appellant submitted that, as in the case of Novak v. Bond, [1999] 1 S.C.R. 808, the limitation period should be postponed because he was so overwhelmed by the cumulative effect of the continuing actions of the respondents that he had lost the financial and emotional capacity to proceed with legal action before February 2015.

[11]        The appellant did not argue that postponement was appropriate on the basis of a disability as defined in s. 7 of the Former Act, and did not assert that he was incapable of managing his own affairs.

[12]        The judge did not accede to the first submission that the misdiagnosis was an ongoing tort. He found the last certification by either respondent doctor occurred on October 4, 2012. He observed that the answer to the postponement question turned on whether the period from October 4, 2012 to February 19, 2013 was a period of continuing damage or continuing negligence, citing Fidler v. Forensic Psychiatric Institute, a Hospital, 2015 BCSC 1241 at para. 72 and the authorities reviewed there. He then said:

[55]      Interesting as that question is, it is unnecessary to decide it on this application because both dates are more than two years from the July 12, 2016 commencement of this action, and the circumstances relevant to postponement are the same for both dates. I tend, however, to the view that the alleged negligence ended with the last renewal of certification and in the absence of evidence of any specific reason arising between then and February 19, 2013 for Dr. Buller to review the decision made on October 4, 2012, it cannot be said that Dr. Buller omitted to do something that he should have done in order to meet the applicable standard of care.
[Emphasis added.]

[13]        The judge concluded that the limitation period began to run in respect of the appellant’s claims on October 4, 2012. He found no merit in the plaintiff’s submission that notes to file before the delayed closing of the MHSU file or the attempted and unsuccessful home visit to a wrong address could constitute continuing actionable negligence due to a misdiagnosis (at paras. 56–57).

[14]        Turning to the appellant’s second submission, the judge said:

[58]      I find that N.T.’s evidence in respect of coming to a “full realization of injuries incurred” as he became overwhelmed with emotion while lifting a heavy tote containing his legal file in March 2016, is a wholly inadequate evidentiary foundation for accepting that was his first discovery of his claim. That evidence does not specify what “full realization” means. If full realization had involved the discovery of a previously unknown injury that was qualitatively different from the injuries that he had been complaining of for approximately 15 years, it would be worth considering as analogous to the facts in Brooks. However, as the evidence stands, I agree with the defendants’ submission that this evidence addresses only the extent of injury, ignorance of which does not serve to postpone the running of the limitation period.

[60]      The [appellant’s pursuit of other avenues] summarized in para. 38 of these reasons, in my view, overwhelmingly refutes any suggestion that N.T. was unaware of the existence of a duty owed to him by the defendants or that he had suffered the alleged damages as a result of a breach of a duty.

[Emphasis added.]

[15]        The judge also rejected the appellant’s third submission that his circumstances were analogous to those in Novak:

[71]      It may not be fair to infer from N.T.’s characterization of his approach as one of “passive resistance” that he made a conscious tactical decision to take that approach rather than commence a suit when he first took the position that the defendants had harmed him by negligently misdiagnosing a mental disorder and misapplying the MHA, but he has offered no evidence of serious, significant and compelling personal circumstances in any way comparable to those of Mrs. Novak that could be considered sufficient to explain why he could not reasonably have commenced an action prior to July 12, 2014. [Emphasis added.]

[16]        Finally, the judge addressed the possibility of postponement due to disability, even though the appellant strongly denied he was disabled:

[73]      Turning to the question of postponement due to disability, I mentioned earlier that the plaintiff has not advanced that argument. I need only say that I agree that certification under the MHA does not necessarily equate to a legal disability for the purposes of the Former Act, as pointed out in Fidler. The burden of proving disability, defined in the Former Act as, “in fact incapable of or substantially impeded in managing his or her affairs”, would always be on the proponent.

[17]        The judge concluded the appellant had failed to establish any of the bases in s. 6(4) of the Former Act for postponing the commencement of the applicable limitation period. He therefore found the appellant’s claims against all the respondents were barred by the Former Act, and dismissed the action with costs.

On appeal

[18]        The appellant raises five grounds of appeal, four of which flow from the positions he maintained at trial. As to those grounds, he contends the judge erred by:

(i)        Not considering the merits of the underlying action when determining whether the claim was out of time;

(ii)       Finding that events after the discharge date in February 2013 did not constitute actionable harm;

(iii)      Finding that the limitation date should not have been postponed; and

(iv)      Considering medical evidence that contained hearsay for the purpose of determining the limitation period.

[19]        In my view, the judge thoroughly and carefully addressed the first three issues above and the plaintiff has identified no reviewable error in that analysis. The judge did not directly address the fourth issue, but in my view it too can be summarily addressed. The appellant objected to the use of records containing reports from others about his mental health. However, there is no merit to this ground of appeal because the records were not admitted to prove the truth of the impugned observations, but rather to establish certification dates relevant to the running of the limitation period.  

[20]        The fifth ground of appeal requires fuller consideration. The appellant contends the judge failed to address the submission that his claim falls within the exemption in s. 3(1)(k)(ii) of the Limitation Act, S.B.C. 2012, c. 13 (the “Current Act”). I turn to that issue now.

Is the appellant entitled to claim the benefit of s. 3(1)(k)(ii) of the Current Act?

[21]        Section 3(1)(k)(ii) of the Current Act provides:

3  (1) This Act does not apply to the following:

k)   a claim relating to assault or battery, whether or not the claimant's right to bring the court proceeding was at any time governed by a limitation period, if the assault or battery occurred while the claimant

(ii) was living in an intimate and personal relationship with, or was in a relationship of financial, emotional, physical or other dependency with, a person who performed, contributed to, consented to or acquiesced in the assault or battery;

[Emphasis added.]

[22]        The parties agree that the provisions of the Former Act apply to this case, but they also accept that s. 30(5) of the Current Act gives s. 3(1)(k) retroactive force:

30(5)    Nothing in this section restricts the right of a person to bring a court proceeding at any time in relation to a claim referred to in section 3(1)(i), (j) or (k) of this Act, whether or not the claimant's right to bring the court proceeding was at any time governed by a limitation period.

[23]        Although the appellant made brief submissions at trial on the applicability of s. 3(1)(k)(ii), and the judge responded to that issue during argument, he made no finding in his reasons for judgment as to whether that section could apply to the appellant’s claim. In my opinion, this Court is nonetheless in a position to determine the issue. Statutory interpretation is a question of law that is reviewable on a correctness standard: Housen v. Nikolaisen, 2002 SCC 33 at para. 8, and British Columbia (Attorney General) v. Beacon Community Services Society, 2013 BCCA 317 at para. 13. Further, to the extent that the applicability of the section requires consideration of the facts, the judge made the requisite findings as to the appellant’s certifications and discharge.

[24]        The appellant submits his claim falls within s. 3(1)(k)(ii) because he was assaulted, and as a person held against his will in hospital or released on terms set by the respondents, was in a relationship of dependency. The appellant describes the assaults as follows:

(i)        His initial apprehension by the RCMP in 2000;

(ii)       His subsequent detention in the hospital;

(iii)      Being forced to consume medication; and

(iv)      The continuing potential for apprehension under the Mental Health Act.

[25]        The respondents submit the appellant is not entitled to claim the benefit of s. 3(1)(k)(ii) for two reasons: first, because he was deemed under the Mental Health Act to have consented to treatment, and second, because a “relationship of dependency” cannot encompass the relationship between healthcare providers and a person certified as an involuntary patient under the Mental Health Act.

[26]        For the reasons that follow, I am of the view that s. s. 3(1)(k)(ii) does not exempt the appellant’s action from the two-year limitation period for personal injury because the actions complained of do not involve an assault or battery.

[27]         An assault “is the intentional creation of the apprehension of imminent harmful or offensive conduct”, and battery “is the intentional infliction of unlawful force on another person”: Ward v. City of Vancouver, 2007 BCSC 3 at para. 48. The appellant submits that the continuing potential for apprehension under the Mental Health Act constitutes an assault, and that each apprehension and detention constituted a battery.

[28]        In my view, the potential for apprehension under a statute which authorizes involuntary treatment of persons meeting certain criteria, and which applies to everyone in the Province, cannot constitute an assault. Nor does the actual apprehension and detention of a person in accordance with the certification provisions of the Mental Health Act, without more, amount to intentional infliction of unlawful force. The purpose of the Act is, in part, to provide treatment for those who are incapable of recognizing the need for it and who will not accept it voluntarily — de facto they can only be hospitalized against their will. In this case there is no suggestion that the formalities of the Mental Health Act were not complied with in relation to the appellant’s certification or treatment. I note parenthetically that each certification was reviewed and upheld by the Mental Health Review Panel, and that the fourth certification was also reviewed and upheld by the Supreme Court of British Columbia.

[29]        In my view, of the actions complained of, only the involuntary consumption of medication while the appellant was certified could found an action in assault or medical battery. However, consent is a complete defence to such claims: Reibl v. Hughes, [1980] 2 S.C.R. 880 at 890; Bentley v. Maplewood Seniors Care Society, 2015 BCCA 91 at para. 14; Ward at para. 48. Under the Mental Health Act, a patient who has been certified is deemed to have consented to treatment upon the completion of specified forms. Section 31(1) provides:

31  (1) If a patient is detained in a designated facility under section 22, 28, 29, 30 or 42 or is released on leave or is transferred to an approved home under section 37 or 38, treatment authorized by the director is deemed to be given with the consent of the patient. [Emphasis added.]

[30]        In the appellant’s case, a Form 5 Consent for Treatment (Involuntary Patient) was completed by a registered nurse and one of the respondent physicians in respect of each certification. The Form 5 stated the nature of the appellant’s condition, options for treatment, reasons for treatment, the likely benefits and risks of the treatment, and confirmed that those matters had been explained to the registered nurse by one of the respondent physicians. In effect, the Act authorized the nurse to provide consent on behalf of the appellant.

[31]        In Mullins v. Levy, 2005 BCSC 1217 at paras. 138–147, a nurse who signed a Form 5 on behalf of a patient was found to be not liable in damages on the basis that she had no reason to question the expertise of the physicians who explained the nature of the plaintiff’s disorder and recommended treatment accordingly. That finding was upheld by this Court on appeal (2009 BCCA 6 at paras. 164–165).

[32]        I note that the question of whether the appellant was properly certified as an involuntary patient is distinct from the issue of whether the respondent physicians may have been negligent in their diagnosis. In other words, healthcare providers are entitled to rely on certification and deemed consent if the formalities of the Mental Health Act have been complied with. If a physician misdiagnoses a patient, that conduct may give rise to an action in medical negligence, but not in medical battery for lack of consent: see generally Reibl at 890.

[33]        The appellant will no doubt find this conclusion unsatisfactory, since the very certification he wishes to dispute effectively dispensed with the need for his consent to treatment. However, consent is a legal construct. In some circumstances it must be expressly given by the patient; in others it may be supplied by a third party who has the right in law to provide substituted consent. In the appellant’s case, the legislature has, through the Mental Health Act, given the right to consent to treatment to the Director or their delegate, here the nurses involved in the appellant’s care.

[34]        In summary, the administration of medication by healthcare providers in accordance with the Mental Health Act does not, without more, constitute an assault or battery. It follows that the appellant cannot bring himself within the first element of s. 3(1)(k). It is therefore not necessary to resolve the issue of whether the appellant could meet the second element of being in a relationship of dependency with either his doctors or treating entities.

[35]        As a final matter, I turn to the appellant’s concern that the judge did not understand how significantly a psychiatric diagnosis affects the person concerned. The appellant emphasized the importance of the judge appreciating the life-altering “ridicule and stigma” caused by a diagnosis of mental illness. This issue is closely related to the appellant’s view that the judge should not have addressed the limitation period defence without considering the merits of his case.

[36]        In my view, the judge did not err in proceeding as he did in light of the uncontested facts relevant to the limitation period. Moreover, although the judge did not address the merits of the appellant’s claims, or consider the full impact of the psychiatric diagnosis, it is apparent from the reasons for judgment that the judge was well aware of the appellant’s circumstances and his perception that he had suffered significantly and needlessly despite sustained efforts to remedy the situation.

Disposition

[37]        In the result, I would dismiss the appeal, with thanks to the appellant and to counsel for their thorough submissions.

“The Honourable Madam Justice Fenlon”

I AGREE:

“The Honourable Mr. Justice Willcock”

I AGREE:

“The Honourable Madam Justice Fisher”