2005BCSC1217

Before: The Honourable Mr. Justice R.R. Holmes

Reasons for Judgment

Counsel for the Plaintiff:	Norman D. Mullins, Q.C.
Counsel for the Defendant Doctors:	David W. Pilley S.K. Raab
Counsel for the Defendant Vancouver Hospital and others:	Penny A. Washington
Counsel for the Attorney General of B.C.:	Lisa Mrozinski Leah Greathead
Counsel for the Intervenor:	Karen E. Jamieson
Date and Place of Trial:	April 8-10, 2002 July 7-11, 14-18, and 21-25, 2003 April 5-8, 14-16, and 19-22, 2004
	Vancouver, B.C.

[1] The plaintiff states his action is for “…certain determinations, constitutional declarations, general, special and punitive or exemplary damages for assault and battery, false arrest and false imprisonment, breaches of the Mental Health Act and Mental Health Regulation, various offences and crimes and infringement or denial of fundamental rights under the Canadian Charter of Rights and Freedoms. The pleadings do not accurately track this description but it does offer some explanation for the plaintiff’s determination in pursuit of his action against the defendants.

SUMMARY OF EVENTS AND INTRODUCTION TO THE PARTIES

[2] This action arises from events that followed upon the plaintiff, a 42 year old West Vancouver resident, attending the emergency department of the Vancouver Hospital and Health Sciences Center ("VGH" or "the hospital”) in the early morning of May 9, 1998. The plaintiff had awakened with body tremors and feelings of distress and he phoned the police who arranged for an ambulance to transport him to hospital.

[3] The plaintiff was examined by Dr. Doug McKnight, an emergency physician, who found the plaintiff was not certifiable under the Mental Health Act, R.S.B.C. 1996, c. 288 (the "Act”). It was arranged that the plaintiff would wait to see a doctor in the Psychiatric Assessment Unit (the “PAU”) when it was staffed later in the morning.

[4] The plaintiff later received Dr. McKnight’s permission to leave the hospital and attend a charity run at UBC that he had intended to participate in. He traveled by taxi to the endowment lands at UBC, ran in the event, and returned about noon to the hospital emergency department.

[5] The defendant Rua Roxanne Mercier ("Dr. Mercier"), an emergency physician who replaced Dr. McKnight on the morning shift, was aware of the plaintiff’s appointment with the PAU and she escorted him to an interview room.

[6] At the interview room the plaintiff met the defendant Dr. Joelle Materi ("Dr. Materi”), a resident working that day in the PAU.

[7] Dr. Materi had her degree in medicine but had not completed her residency training and was not qualified as a physician or psychiatrist. As a resident she was conducting preliminary patient assessment interviews.

[8] Dr. Materi conducted an assessment interview with the plaintiff and she concluded that he was suffering a manic episode and required immediate treatment. Dr. Materi left the plaintiff in the interview room and initiated the process to have the plaintiff involuntarily committed to the PAU.

[9] Dr. Materi made the arrangement for the plaintiff to be admitted to a PAU quiet room. She spoke with Dr. Mercier who then signed a Certificate under the Mental Health Act to involuntarily commit the plaintiff; she advised the defendant Geoff Brown, a security guard from the defendant Western Pacific Security Group who contracted security services to the VGH that the plaintiff was admitted to the hospital and that he was not to leave; she made some phone calls to try and obtain information about the plaintiff; and she met with Dr. Ganesan, her supervisor, who was the physiatrist on duty in the PAU that day to request Dr. Ganesan attend to assess the plaintiff and to review her assessment with him.

[10] The defendant Brown believing that security was required to ensure the plaintiff did not leave the hospital arranged for a security team to assemble in the hallways near the plaintiff’s interview room.

[11] The plaintiff heard the noise of the security personnel in the hallway and opened the door to see what was happening. He was ordered to stay in the room. When he tried to leave he was blocked and when he tried to push through he was tackled to the ground, restrained, and taken to the seclusion room in the PAU. His clothes were cut off and he was injected with medications.

[12] Dr. Ganesan signed the second Certificate required under the Act to involuntarily confine the plaintiff.

[13] The defendant Cyrus Farivar was the psychiatric nurse on duty and he signed a form for Consent to Treatment pursuant to the provisions of the Act which allowed for medications to be administered involuntarily.

[14] The plaintiff was detained for five days and medicated throughout that period against his express wish. The defendant Dr. John Mark Levy (“Dr. Levy”), a psychiatrist, was at the relevant time the Director or the Officer in Charge of the PAU and he assumed the treatment of the plaintiff on May 10, 1998.

[15] As the defendant Dr. Levy denied the plaintiff’s demands to be released from the PAU the plaintiff issued and served the Writ of Summons in this action on him seeking his release. Dr. Levy thus placed in a conflict arranged for Dr. Duke, another psychiatrist, to assess the plaintiff. Dr. Duke examined the plaintiff on May 14, 1998 and she agreed to his discharge on condition he continue the medications he was receiving and he remain under medical supervision. He came under the care of Dr. Long a psychiatrist in private practice following his release.

[16] The actions of the various defendants in respect to their alleged liability is intertwined but the alleged causes of actions against each must be considered separately.

[17] These proceedings were originally adjourned to allow the plaintiff to issue a Notice of Constitutional Question to challenge the validity of committal and treatment provisions of the Act.

[18] The reason for the constitutional challenge taken by the plaintiff was in reaction of the defendants’ reliance upon the immunity provisions of the Act as providing to them a defence against liability to the plaintiff if they were found to have acted in good faith and without an improper purpose.

[19] It is clear however that the plaintiff seeks to challenge the Act as a person who does not suffer from a mental disorder. Therefore a very serious issue exists as to the standing of the plaintiff necessary to raise constitutional issues as to the validity of committal and treatment provisions of the Act as they apply to persons suffering from a mental disorder.

[20] The British Columbia Schizophrenia Society intervened in the proceeding to provide the perspective of the need for the legislation in providing vital community assistance to persons suffering from serous mental illness.

THE PLAINTIFF’S BACKGROUND

[21] Some background of the plaintiff is necessary for an understanding of his mental status and behaviour leading to his attendance at the VGH on the morning of May 9, 1998.

[22] The plaintiff was 42 years of age in May 1998. He has two brothers and his parents are alive. His father has been his legal counsel throughout this proceeding.

[23] The plaintiff graduated from high school and attended UBC for one year, followed by two years at the British Columbia Institute of Technology where he received a diploma in Transportation and Marketing. He also attended a three month course in Main Frame Computer Operations at the Control Data Institute.

[24] The plaintiff was licensed to fly aircraft commencing in October 1973 and was continuously licensed until after May 1998. The plaintiff held commercial licenses for fixed wing, multi-engine planes, float planes and helicopters. He was qualified for instrument and night flying.

[25] The plaintiff has been steadily employed since leaving school primarily in the electronic and computer repair or sales fields. As of May 1998 the plaintiff operated his own company which involved sales and service of computers and was also partly aviation oriented involving consulting, design, service and sale of equipment for helipad installations.

[26] The plaintiff was involved in the design and equipping of the helipad at the VGH and other hospital and medical facilities in B.C. and Alberta, RCMP, Coast Guard, and commercial installations.

[27] Through his school years and after the plaintiff was a volunteer with the North Shore Rescue Team which exposed him on occasion to the recovery of dead bodies and the rescue of seriously injured people. He had not been engaged in these activities for several years.

[28] The plaintiff felt very strongly of the need for a helicopter landing site at the Lions Gate Hospital in North Vancouver. He was active since the mid 1970’s in trying to convince administrators and politicians of that need and was active in seeking community support for a helipad and increased air ambulance services.

[29] The plaintiff was also active with the Vancouver Regional Air Patrol Society in trying to raise funds for the purchase of two police helicopters that would do police patrols in the lower mainland area.

[30] The plaintiff believes his persistent activity seeking a helicopter landing pad at Lions Gate Hospital and increased air ambulance services, likely generated some political ill will against him.

PERCEIVED STRESSORS IN THE PLAINTIFF’S LIFE

[31] The plaintiff believes his work with the North Shore Rescue Team left him more susceptible to “critical incident stress” because of the cumulative effect of seeing and helping seriously injured, dying, or dead bodies, particularly when children were involved.

[32] The plaintiff felt very close to his grandfather Charles Mullins and his step-grandmother Rita Mullins (“Rita”). After his grandfather died Rita lived alone in Victoria but the plaintiff maintained regular contact with her by phone or visit. He worked for two years in Victoria and visited with her regularly.

[33] In April 1998, on the Easter week-end the plaintiff tried to contact Rita without success. He contacted the police who located her in a hospital suffering congestive heart failure. She had not wished anyone to know she was sick and dying. The plaintiff went to Victoria and secured her home. The plaintiff and family visited but she was very low. She died at the end of April about two days after the plaintiff’s last visit with her.

[34] The plaintiff was also close to his uncle Orville Gordon Mullins (“Orville”). He had a business which made a deodorizing product from a natural stone. The material was processed, moulded into various shapes and shipped around the world. His uncle wanted the plaintiff to take over the business but he was too busy with his own.

[35] In 1998 Orville was elderly and had been in poor health for years. He was blind in one eye and had poor vision in the other; was hard of hearing, unstable in balance; unable to walk far, and suffered memory problems.

[36] Orville suffered a stroke and was hospitalized. He did not recover consciousness before he died.

[37] The plaintiff stepped in to the run his uncle’s business as his cousins did not appear interested or capable. There were only two employees; a secretary and a man who moulded the product. The plaintiff put in long hours to try and determine the business assets, the clients, inventories, manufacturing requirements, orders, customers, and sales contacts and the like.

[38] The building housing the business was under the Patullo Bridge, in a run-down, high-crime area of Surrey, close to the Turf Hotel.

[39] The building was small, one floor, and had no security. The interior he describes as a complete mess with a disarray of product, old materials, unlabeled chemicals, acids, radio active materials, bottles, pots and assorted chemicals.

[40] The plaintiff brought some order to the building and installed a simple coded alarm system. He had chemicals and waste removed.

[41] The plaintiff testified to what he considered several strange events occurring in relation of the business while he was involved that eventually led him to believe it was the Hell’s Angels or some criminal group that were using the business, or trying to acquire the business, to facilitate some activity such as drug smuggling or sale.

[42] Some of the events related by the plaintiff include:

· a man of who appeared to be a “biker” lived in a run down house across the street and he had come to the office after Orville’s stroke to inquire what was happening with Orville and the business;

· the business was close to the Turf Hotel which the plaintiff considered notorious for “biker” activity, fighting and drug dealing;

· it was discovered that unknown to any family, employees, or friends Orville had married about three months before his stroke. He married an immigrant Chinese woman much younger than himself who was working illegally as a waitress at the Turf Hotel;

· the wife sent various people to investigate the business and on one occasion when she attended herself she acted suspiciously and the plaintiff saw her remove keys to Orville’s car, apartment and office, from a brief case;

· a Chinese man who had in the past been an associate for a time with Orville appeared to be very close to the wife;

· the wife and former business associate met with an American businessman from California who had done business with Orville in the past. They were trying to take over and run the business;

· there was one contentious meeting that lasted many hours into the night with the plaintiff, a couple of his cousins, the new wife, the Chinese associate, the American businessman and lawyers. The meeting was extremely acrimonious and the purpose was to try and have the plaintiff removed so the wife and her business associates could take it over;

· there were three attempted break-ins at the business premises but only one old photocopy machine was stolen;

· there was a possible attempt at arson. The wife had entered the premises with a key but did not know the alarm code. When the plaintiff attended the next morning a can of highly inflammable acetone was found sitting open on the floor.

[43] The plaintiff also believes there were attempts to break into his apartment and parents home. The plaintiff suffered a panic attack on May 1, 1998 and thereafter he dropped his activity in Orville’s business.

[44] Unknown to the plaintiff at the time his uncle had died on the evening of May 8, 1998 just prior to his attending at the VGH in relation to the incident at issue here.

[45] The detailed evidence of the plaintiff concerning the events surrounding his uncle’s business is quite bizarre. The factual events are uncontradicted, however the inferences the plaintiff appears to have drawn from most of the facts are not ones I am prepared to accept without more convincing evidence.

HEALTH

[46] Prior to May 1998 the plaintiff’s health was good and in order to maintain his pilot’s license he had regular medical examinations none of which had indicated any physical or mental problem.

[47] The plaintiff’s mother could recall only one health incident of concern which had occurred in 1965 when the plaintiff was about 10 years old during the course of a cross country car trip. The plaintiff had awakened her with a gurgling sound in his throat and he was thrashing about and she thought it resembled a seizure. The plaintiff was tested at a hospital in Ottawa because of the incident but no result came from the test. He never had a reoccurrence or similar incident.

[48] A health incident of concern however did occur on May 1, 1998. The plaintiff had spent the day alone at his parent’s West Vancouver home phoning people about his grandmother Rita’s death.

[49] The plaintiff suddenly experienced rapid heart beat, difficulty breathing, and he was sweating and shaking. He could not communicate well.

[50] He was able to call the fire department, to seek first response help, as he knew they responded much faster than could an ambulance. He awaited the fire truck by lying on the grass outside the house. The fire department arrived and provided basic care, moving him into the house and keeping him warm until the ambulance arrived.

[51] The plaintiff wished to be taken to VGH rather than Lions Gate Hospital because of his belief that VGH had a far superior care capability. The ambulance refused to take him to the VGH and they left.

[52] The plaintiff called the West Vancouver police and requested they drive him to the VGH. The police arrived and immediately handcuffed the plaintiff and placed him in the back of their vehicle and then talked with assembled friends and neighbours. The plaintiff found the closed vehicle stifling hot and without ventilation. He kicked at the door and window to get the police to open the door or window and provide fresh air. The police took him to the West Vancouver Police station where they were met by an ambulance which transported him to VGH. He arrived by stretcher at the VGH emergency department between 8:00 p.m. and 9:00 p.m. and was given a physical exam and blood samples were taken. He was advised he had suffered a panic attack and that he could go home. He was given one Ativan pill at the hospital.

THE MENTAL HEALTH ACT

[53] The primary underlying issue in this action is whether the plaintiff was admitted to the PAU in conformity with the requirements of the Mental Health Act. I agree with the assessment of plaintiff’s counsel that:

The Mental Health Act is a badly drafted piece of legislation and appears to suffer from periodic ad hoc amendments made with little attention to their over-all effects on the statute.

[54] On May 9, 1998 the operative section of the Act relating to the involuntary detention of a person provided:

22 (1) On receiving 2 medical certificates completed by 2 physicians in accordance with subsection (2), the director of a Provincial mental health facility may admit a person to the facility and detain the person in it.

[55] The detention of the plaintiff here was in the PAU of the VGH. Section 1 of the Act defines a “Provincial mental health facility” as “…a Provincial mental health facility designated under this Act.” It defines “psychiatric unit” as “…a public hospital or a part of it designated by the minister as a psychiatric unit”.

[56] The power to designate distinguishes among three different types of facility of which the PAU is one.

3(1) The minister may designate a building or premises as a Provincial mental health facility.

(2) The minister may designate a public hospital or a part of it, not being a Provincial mental health facility, as an observation unit or a psychiatric unit.

[57] Section 22 of the Act therefore permits that: “…on receipt of 2 medical certificates completed by 2 physicians in accordance with sub-section 2 … the director of a [psychiatric unit] may admit a person to the [unit] and detain the person in it".

[58] The plaintiff argues that Dr. Levy was not the Director of the PAU and the plaintiff was not admitted to the PAU by a director as required by the Act. This however is contrary to the plaintiff’s own pleading that Dr. Levy “…at all relevant times, practiced in, and was Director of, the PAU of the Hospital.” [Third Amended Statement of Claim, paragraphs 2 and 29]

[59] The Act in section 1 provides a definition:

"director" means a person who is appointed in charge of a Provincial mental health facility and includes a person authorized by the director to exercise a power or carry out a duty conferred or imposed on the director under this Act or under the Patients Property Act.

[60] The evidence of the defendant doctors regarding their understanding of the Director of the PAU in 1998 varied. Dr. Ganesan understood Dr. Levy was the Clinical Director of the PAU, sometimes referred to as the Clinical Manager.

[61] In respect of admissions all patients admitted to the PAU were admitted under Dr. Levy’s name regardless of which psychiatrist arranged the admission.

[62] Dr. Ganesan understood when Dr. Levy was unavailable that he could, and did, delegate his Director’s function to another psychiatrist.

[63] Dr. Levy’s evidence was that in 1998 he was the Clinical Director of the PAU and his duties were really as Medical Manager. He believed the reference in the Act to director would be to the head of the Psychiatric Department and in 1998 the department head was Dr. Diane Watson.

[64] Dr. Materi believed that Dr. Levy was the Director.

[65] The Act contains no express provision for the appointment of directors and s. 43(2) gave no authority for making regulations for such appointments; however the Lieutenant Governor in Council was authorized to make regulations referred to in s. 41 of the Interpretation Act, R.S.B.C. 1996, c. 238 which included:

41 (1) If an enactment provides that the Lieutenant Governor in Council or any other person may make regulations, the enactment must be construed as empowering the Lieutenant Governor in Council or that other person, for the purpose of carrying out the enactment according to its intent, to

(a) make regulations as are considered necessary and advisable, are ancillary to it, and are not inconsistent with it,

(b) provide for administrative and procedural matters for which no express, or only partial, provision has been made, …

[66] The Mental Health Regulation [B.C. Reg. 155/97] makes no provision for appointment of directors but does permit

3. If the minister designates a public hospital or part of it as a psychiatric unit …, the board of the hospital must appoint an officer in charge and may also appoint alternates.

[67] Section 8 of the Act therefore imposes obligations on a Director and makes those obligations applicable to an Officer in Charge; nowhere does it give authority to an officer in charge to admit patients to the PAU.

[68] The legislation is unclear as to who appoints a director and how a director is appointed.

[69] The definition of “director means a person…” (not “the person”) is an indication there may be more than one person appointed as a Director of a facility. The wording of the definition can also be read as allowing a designant of a director to in turn delegate to another the duties of a Director.

[70] Dr. Levy’s functions were those of a Director with responsibility for medical staff resources, quality improvement, and the designation of a person to sign Consent to Treatment forms.

[71] The role of a director or an officer in charge is defined in s. 8 of the Act and is consistent with Dr. Levy’s role.

[72] Any of the divergent views of the defendant doctors in their evidence regarding how Dr. Levy had authority as a Director can support that position. Dr. Levy believed he was a designant of Dr. Watson. Dr. Ganesan believed Dr. Levy was a Clinical Director having the special responsibility of the patients being admitted under his name. Dr. Materi understood that Dr. Levy was the Director.

[73] In the present circumstances I will accept both Dr. Levy and Dr. Watson were directors.

[74] The plaintiff was admitted by Drs. Materi and Ganesan who were designants of Dr. Levy for purposes of admission under the Act.

THE REQUIREMENT FOR TWO CERTIFICATES

[75] The plaintiff was admitted and detained in the PAU prior to the medical certificate of Dr. Ganesan being completed contrary to the express requirement of s. 22 that a person may only be detained on receipt of two completed medical certificates.

[76] The defendant doctors argue that “on receipt…” does not necessarily mean “after” and that it has a less temporal meaning that encompasses a meaning of “simultaneously with” or “approximately simultaneously with”. Section 8 of the Interpretation Act provides:

8. Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

[77] I accept that as Mr. Justice Donald observed in McCorkell v. Riverview Hospital (Director) (1993), 81 B.C.L.R. (2d) 273 (at 296):

The purpose of the Act is manifestly plain: the treatment of the mentally disordered who need protection and care in a provincial psychiatric hospital. Commenting on a similar statute for Prince Edward Island, McQuaid J., speaking for the Supreme Court of that province, in the case of Re Jenkins (1984), 5 D.L.R. (4th) 577 at pp. 589-590 said:

The thrust of the Mental Health Act, including its predecessors, has been the safety, support and succour of those who suffer from, or appear to suffer from, a debilitating mental disability or disorder and who, as a consequence, require hospitalization, whether voluntary or otherwise, for their own safety or the safety of others. In this context the word "safety" goes beyond mere protection from the infliction of physical injury….

Historically, the law in the English tradition has had a special care and regard for all subjects who suffered from mental disturbance. Although one might question some of the earlier methods countenanced by the law of an earlier day, none the less, the intent was benign….

The point to be made here is that from the earliest days of English legal history those originally termed "lunatics", now more euphemistically "persons suffering from a mental disorder", were treated as a separate class, requiring and deserving of special care and consideration by the Crown itself but, by reason of their infirmity, subject to certain restrictions as to their freedom of conduct.

[78] I agree a liberal interpretation is required to prevent the absurd result of a “race to the door” competition between doctors filling in Certificates to detain and patient’s refusing to remain.

[79] I am of the view however the delay here was more than temporal. The certification process was far from complete. There had been no examination by a psychiatrist which presumably was the purpose of the plaintiff’s referral to the PAU and Dr. McKnight the who had first examined the plaintiff had already found he was not certifiable under the Act. Dr. Materi should in my view of the evidence also been aware that there was no indication Dr. Mercier had conducted an examination in compliance with the Act.

[80] I also accept that the common law doctrine of necessity in emergency situations could have application in certain circumstances. That would be particularly applicable in situations where it was necessary to protect the patient from harming himself or others. [Conway v. Fleming, [1996] O.J. No. 1242 (Gen. Div.)]

[81] I am not satisfied on the evidence there was an emergency situation here that could reasonably justify a modification of the requirement to detain only “on receipt” of two certificates. There was no indication the plaintiff posed any threat to others and the threat of any harm to himself was not immediate. The plaintiff’s history had been one of complete co-operation and he was apparently at Dr. Materi’s request placidly waiting her return when he was arrested and detained. He was apparently not even asked if he would mind waiting a few minutes until a psychiatrist could see him.

EXAMINATION

[82] Section 22 of the Act clearly mandates the content of the two certificates required. Each must be completed and signed by a physician. The date of the examination must be specified. An opinion that the person is a mentally disordered person must be stated. A summary of the reason for the opinion must be given. There must be a statement that the person requires medical treatment in a Provincial mental health facility and requires care, supervision and control in a Provincial mental health facility for the persons own protection or for the protection of others.

[83] The opinions required of psychiatrists certifying a patient to be properly informed will require review and consideration of available medical history, information on patient interview and personal examination.

[84] The plaintiff’s allegation is that he was seized by security staff, placed in the isolation cell and drugged without his consent in the absence of any examination of him by either Drs. Mercier or Ganesan. The evidence is that Dr. Mercier had signed a Certificate for involuntary committal of the plaintiff just prior to his seizure by the security guards and that Dr. Ganesan signed a Certificate upon his detention and medication in the isolation cell.

DR. MERCIER EXAMINATION

[85] The plaintiff does not recall seeing Dr. Mercier at the hospital. Dr. Mercier recalls being present at the time the plaintiff spoke with Dr. McKnight to obtain permission to go on the charity run. She later escorted the plaintiff after the run from the Emergency department to the interview room to meet Dr. Materi.

[86] Dr. Mercier testified she did not agree with Dr. McKnight’s approval of the plaintiff going on the run but said nothing. She did not disagree with Dr. McKnight’s opinion that the plaintiff was not a person meeting the involuntary certification criteria of the Act at that time. Dr. Mercier’s exposure to the plaintiff was very brief and any consideration of an involuntary committal would have required an examination and review process she did not consider taking.

[87] Dr. Mercier said she had viewed his chart and Dr. McKnight's notes during the time the plaintiff was absent on the run. From her observations she would not consider he was suffering mania but was hypomanic which is less serous.

[88] It is of import that there is no notation by Dr. Mercier in the hospital chart concerning the plaintiff. I would expect any relevant difference from Dr. McKnight’s conclusion in respect of a patient would have been recorded so that the psychiatrist on referral would have the appropriate information. I would not consider Dr. Mercier’s unrecorded observations to be an examination of the plaintiff as contemplated under Section 22 of the Act. I do not believe Dr. Mercier herself considered that she was “examining” him.

[89] The evidence is that Dr. Mercier signed the Certificate for the plaintiff’s involuntary committal after Dr. Materi approached her, told her the plaintiff was “escalating” and asked if she would give a certification.

[90] Dr. Mercier did not see, interview or examine the plaintiff before signing the certificate. Dr. Mercier decided to rely upon the opinion of Dr. Materi and in doing so completely abrogated her duty under the Act.

[91] I cannot accept that Dr. Mercier conducted an examination of the plaintiff, within any reasonable meaning of that term in s. 22 of the Act. Dr. Mercier had some knowledge of the plaintiff form her prior brief interaction and review of his chart but chose to accept the plaintiff was “escalating” without attempt to verify this suggestion and without even observing the plaintiff again.

[92] It is also difficult to understand how in the circumstances Dr. Materi could have possibly believed Dr. Mercier was a physician who could provide a certificate in respect of the plaintiff without conducting an examination. Dr. Materi had reviewed the plaintiff’s chart and it contained no indication Dr. Mercier had examined the plaintiff, or indeed made any observations of him. She was aware Dr. Mercier was not going to examine the plaintiff before signing a Certificate that would lead Dr. Ganesan to believe it the opinion of another physician who had examined the plaintiff.

DR. GANESAN EXAMINATION

[93] Dr. Ganesan was Dr. Materi’s supervisor and he was intending to review her interview and her plan for the plaintiff and then to assess the plaintiff himself. However the plaintiff was seized by the security guards and brought under restraint to the isolation cell before he could do so. Dr. Ganesan wished to interview the plaintiff as he certainly appreciated the value of an in person interview and observed behaviour which he considered was 50% of the examination process.

[94] Dr. Ganesan did try to interview the plaintiff in the seclusion cell however the plaintiff was unable or unwilling to participate. He was in an extremely agitated condition resulting from his seizure and detention and thereafter being heavily medicated. Dr. Ganesan may have attempted to initiate an interview while the guards were still present in the cell and restraining the plaintiff or possibly more immediately after they left.

[95] An examination under s. 22 of the Act cannot be thwarted by a patient refusing to be interviewed despite reasonable effort on the part of the examiner. That interpretation would lead to the absurd result that a patient could never be certified regardless of the degree to which that was required unless he or she chose to co-operate.

[96] I accept that Dr. Ganesan in the circumstances did conduct an examination of the plaintiff within the meaning of the Act prior to signing the Certificate. He believed one Certificate had been signed, the plaintiffs chart was available to him, Dr. Materi was present and he had her report and diagnosis , and he personally was able to observe the plaintiff in his distressed condition, and he tried to communicate with him.

[97] The circumstances of his Certificate, together with his supervisory responsibility in respect of Dr. Materi, and the most unusual circumstances concerning the plaintiff’s apprehension should have been of concern to him and certification considered on an interim basis only until he could better investigate and reach a more informed decision. I conclude Dr. Ganesan was negligent in not taking appropriate action when he became aware of the plaintiff's seizure and detention.

[98] As Dr. Materi’s supervisor, a review of the plaintiff’s chart and a discussion with Dr. Materi would raise a number of concerns to Dr. Ganesan.

[99] The plaintiff had been assessed by an emergency physician who found no need of involuntary committal. The one certificate that had been signed was from Dr. Mercier and there was no record of any examination by her, no interview of any kind, not even an note of observation or concern. Dr. Ganesan made no attempt to talk to her and if he had would likely have realized she had really not done an examination as required under the Act and her certificate was really invalid.

[100] The hospital chart contained the plaintiff’s notes which specifically set out his direction not to be medicated. If the notes were missing by that time it was information Dr. Materi was aware of. In the circumstances Dr. Ganesan could have delayed the commencement of the medication for a period to allow the plaintiff to calm down and permit assessment and his reasoning for not wishing medication.

[101] Dr. Ganesan would have learned the plaintiff had left the hospital, with permission, for several hours and participated in a 10km charity run, and that he had returned after completion to keep his appointment with the PAU. He was therefore clearly attending voluntarily, was not violent, and was expecting to see a psychiatrist or at least have someone discuss his problem with him and what treatment or assistance was available.

[102] Dr. Ganesan would have learned that no one had discussed the possibility of hospital based treatment with him, or addressed his express concerns about medications. No consideration had apparently been given to the fact he was already receiving some community based treatment and possibility he could receive treatment for his current problem in the community from private practitioners.

[103] It must have been apparent to Dr. Ganesan in review of the background material that having the plaintiff presented forcibility and under duress in the seclusion cell as occurred indicated something had gone terribly wrong and required him to investigate the matter quickly and thoroughly to justify the detention.

“…THE PERSON IS A MENTALLY DISORDERED PERSON”

[104] A mentally disordered person under s. 1 of the Act is defined to mean a mentally ill person as:

… a person who has a disorder of the mind that requires treatment and seriously impairs the person's ability

(a) to react appropriately to the person's environment, or

(b) to associate with others;

[105] Dr. Mercier, at trial, expressed a concern that the plaintiff was at risk of inadvertent physical harm to himself as patients suffering mania or hypomania can escalate in their behaviour and in an extreme situation could place himself in danger, as an example, by running through traffic inappropriately. Given Dr. Mercier's lack of acting upon any concern she had, having observed the plaintiff, read his chart, and speaking with Dr. McKnight, having recorded no information on the plaintiffs chart to assist others who would be seeing him, and not attending upon the plaintiff to verify any change in his condition as reported by Dr. Materi I must consider her views and analysis has been coloured by hindsight rather than being indicative of foresight on her part at the time.

[106] Dr. Ganesan was of the opinion persons with mania or hypomania can be unpredictable and behave in a manner destructive or harmful to themselves. Dr. Ganesan’s view is that persons with bipolar disorder are most dangerous to themselves during a manic phase. Dr. Ganesan’s personal observations of the plaintiff caused him concern the plaintiff might injure himself but he of course was witness to the violent nature of apprehension and confinement taking place. Dr. Materi’s findings were of hypomania with escalation occurring.

[107] In my view because of the detailed report and findings of Dr. Materi coupled with the visual observation and attempt to communicate with the plaintiff he had a reasonable basis to consider the plaintiff met the criteria of a mentally ill person requiring “care, supervision and control of the person necessary for the person’s protection”, at the time and at least until a more comprehensive review and assessment was possible..

[108] Conversely I do not find Dr. Mercier at the time she signed the Certificate and without further examination of the plaintiff had an appropriate basis to form that opinion.

RIGHT TO COUNSEL

[109] Section 6 of the Regulations and the Act provides “…immediately on admission or transfer or as soon as the person is capable of comprehension…” the director or officer in charge must inform the patient of the reasons for his or her detention, right to retain and instruct counsel without delay, the right to have the validity of the detention determined by way of habeas corpus, the right to a hearing under s. 25 of the Act, and the right of application to the Supreme Court pursuant to s. 33 of the Act.

[110] The plaintiff in the initial stages of his false arrest and imprisonment repeatedly and aggressively made known his wish to speak to a lawyer. His requests were ignored or refused. I find his right to counsel was wrongfully refused. If may be that he was not “capable of comprehension” of some of detail of matters referred to in s. 6 of the Regulation but he was capable of comprehending the right to contact and instruct counsel.

[111] The plaintiff should have been advised if he cooperated that he could make a call to a lawyer but no opportunity was afforded. In this context I am of the view the denial was more egregious because of the medication being administered before an ability to consult counsel. Initially some tranquillizing medication could have been given to calm the plaintiff but postpone the giving of the anti-psychotic drugs until his status could be more carefully considered.

[112] The inadvertent mitigating factor which fortunately occurred however was that the plaintiff’s parents were notified of his confinement at the PAU and the plaintiff's father Norman Mullins, Q.C. in fact visited with his son within four hours of his confinement and denial of the ability to contact counsel. The denial of the right to counsel although troubling caused the plaintiff no harm or prejudice.

CRIMINAL CODE ALLEGATIONS

[113] Counsel for the plaintiff in argument made allegations of several breaches by the defendants of Criminal Code offences including threats, assault, assault with a weapon, aggravated assault, torture, kidnapping and hostage taking, fraud and forgery.

[114] This is a civil action and defendants are not on trial for any criminal offence. The plaintiff did not plead the offences but seeks to raise them in argument. I agree with counsel for the defendants that not be allowed. I attribute the plaintiff’s use of the offences in argument as a method of grandiose emphasis in argument of the civil causes of action that are pleaded.

DIAGNOSIS OF DR. MATERI

[115] Dr. Materi’s preliminary diagnosis following her examination and interview of the plaintiff was of mania. She considered it might be bipolar disorder mania but she was unsure and as she was unconvinced she limited her diagnosis to the simpler and more easily understood mania. Her evidence was that she “…felt that Mr. Mullins was suffering from a manic episode. There are a number of reasons why that might have been”.

[116] Dr. Materi had received her medical degree however on May 9, 1998 was unable to sign a Certificate under Section 22 of the Act because she was not licensed to practice as a physician. I find her status however had no practical effect in regard to her diagnosis. Dr. Materi in fact became qualified to practice as a physician July 1, 1998, less than two months after the events of May 9, 1998 that are in issue here.

[117] The plaintiff is correct that Dr. Materi’s diagnosis was “…to a lesser or greater degree, accepted and acted upon by Drs. Mercier, Ganesan, Levy, Duke and Long”. That however is in the context that the assessment and observations of each of the doctors were confirmatory of her diagnosis. It is not correct that the other doctors simply accepted her diagnosis in the abstract.

[118] The plaintiff attacks Dr. Materi’s diagnosis as being wrong and suggests that the plaintiff was correct in believing he suffered only from “Critical Incident Stress”.

[119] The plaintiff suggests it is inconceivable that the plaintiff who was assessed by an experienced emergency physicians Drs. McKnight and Mercier as not being a person to be certified under the Act when he left the hospital at approximately 8:30 a.m. with explicit permission to enter a charity run would approximately four hours later after participating in the charity run and returning to the hospital become a “mentally ill person” who was seriously impaired in his ability to react appropriately to his environment or associate with others and that it was necessary he receive immediate medical treatment and be placed under control for his own protection.

[120] The plaintiff, against the advice of Dr. Long, discontinued medication within two months of his release from the PAU. He has experienced no episodes of mania since leaving hospital. His only treatment has been counselling for "Critical Incident Stress".

[121] The issue cannot, however, be resolved that easily. The evidence is that an episode of mania can come on quickly. The evidence is that Dr. Mercier considered the plaintiff was suffering hypomania from her brief encounter with him and Dr. McKnight certainly observed indications of hypomania and his finding against Certification was only his belief that the plaintiff’s status was not serious enough on his observation to warrant involuntary confinement, not that escalation might not occur worsening or endangering the plaintiff.

[122] There are many symptoms in common between Critical Incident Stress, hypomania and mania. In particular mania which is the most serious, is most unlikely to be confused with Critical Incident Stress. The term "critical incident stress" is used by psychologists and is treated by stress counselling. Mania is a term used by psychiatrists and, if serious, is treated by hospitalization and drug therapy.

[123] The Court is not in a position to diagnose the plaintiff. That is a medical mental health issue that must be based on the evidence of persons of expertise.

[124] Dr. Materi gave her evidence by video deposition which required several days. She was extensively and meticulously cross examined. I found her to be articulate, responsive to questions, and knowledgeable regarding her examination of the plaintiff. She seemed thorough in her collection of information needed to reach a considered diagnosis. Her reaction to some of the plaintiff’s actions, mannerisms, explanations, and speech were matters observed by others. The evidence of Dr. Materi appeared to be fair in the sense she fully acknowledged factors that were contrary to her ultimate finding of a diagnosis of mania.

[125] Dr. Remick, an experienced psychiatrist with expertise in the diagnosis and treatment of mood disorders with emphasis on hypomania, mania and bipolar disorder provided some guideposts to the diagnosis of mania.

A. Inflated self-esteem or grandiosity

B. Decreased need for sleep

C. More talkative than usual or pressure to keep talking

D. Flight of ideas (or subjective sense that one's thoughts are racing)

E. Distractibility

F. Increased involvement in goal-directed activities and/or psychomotor agitation

G. Excessive involvement in pleasurable activities with an increased risk of painful consequences (e.g. buying sprees, sexual indiscretions, foolish business investments).

[126] All these symptoms or criteria were observed or reported in respect of the plaintiff. Of significance are three prime indicators differentiating hypomania from mania; with mania being the most serious.

A. Evidence of impairment in judgment

B. Psychotic symptoms (hallucinations, delusions)

C. Requires hospital care for treatment of the syndrome.

[127] The evidence indicates the presence of all three in the case of the plaintiff.

[128] Dr. Remick was of the view that it was entirely reasonable on the information known for Dr. Materi to conclude the plaintiff was experiencing mania.

[129] The evidence of Drs. Ganesan, Levy, Duke and Long all support the provisional diagnosis of the defendant Dr. Materi.

[130] Dr. Materi’s interview of the plaintiff was variously estimated at 15 to 45 minutes. I accept it was likely in the 30 minute range and it appeared for her part to have been well structured and comprehensive.

[131] Dr. Materi was fully capable of recognizing “pressured speech” and not confusing it with speaking quickly or caused by a nervous reaction. The plaintiff clearly exhibited "flight of thought" with a jumble of relevant information mixed with unsolicited information and ideas that were neither appropriate nor relevant.

[132] The evidence supports a great deal of grandiosity on the part of the plaintiff. He exhibited a need to impress, inflate importance and focus attention on his accomplishments. Whether matters suspect of grandiosity are true, or partly true, is not the issue. It is whether the reason for raising the matter, the manner in which they are raised, and the undue focus on them is what is telling.

[133] In my view Dr. Materi was right in her concern about the plaintiff’s account of his uncle’s business, the new wife, the Hell’s Angels, criminal conspiracy and related matters. I do not find the facts reported support the extreme paranoid assumptions the plaintiff was making.

[134] The plaintiff was describing a pattern of over working, sporadic eating habits, and sleep deprivation.

[135] I am of the view Dr. Materi was entitled to reach her diagnosis and it was not unreasonable in the circumstances. I do not however accept that the plaintiff’s situation was so serious that he could not have been asked to wait and see Dr. Ganesan or that it was necessary to act immediately to effectively place him under control and prevent his leaving the interview room prior to her preliminary diagnosis being reviewed with Dr. Ganesan and his examination taking place.

[136] The plaintiff had co-operated fully with hospital and medical staff. He was referred to the Psychiatry department by Dr. McKnight who did not find him within certification criteria but wished him to see what assistance a psychiatrist could offer. The plaintiff was free to leave the hospital but he wanted to see a psychiatrist as Dr. McKnight wished. He asked specifically for permission to leave and go on a charity run, and he returned immediately thereafter. The plaintiff wanted to see a psychiatrist and he gave no indication to the contrary and I do not find the circumstances before Dr. Materi suggested he would leave the hospital before seeing Dr. Ganesan. Indeed the evidence is he was intending to have a nap while waiting.

[137] In the circumstances Dr. Materi could have arranged quickly for Dr. Ganesan to conduct his interview and make the decision on whether the extreme use of an involuntary admission was required. Her actions were negligent and led to the plaintiff being apprehended and detained without compliance with s. 22 of the Act.

LIABILITY OF FARIVAR

[138] The defendant Farivar was a registered nurse employed by the Hospital and was on duty May 1998 in the PAU at the time the plaintiff was admitted.

[139] The defendant Farivar signed the Form 5 (Ex. 60) to Act which permitted administering medication without consent to a patient involuntarily committed. The plaintiff in paragraphs 24, 25 and 30 makes broad allegations against him of falsely stating Dr. Materi explained to him the reasons and likely consequences of the treatments ordered for the plaintiff; that to his knowledge Dr. Materi was not authorized or was incompetent to give the explanation; that he acted in bad faith, was negligent, and acted against the will of the plaintiff administering harmful and injurious medications.

[140] Section 31 of the Act provided that treatment authorized by the director to persons detained under s. 22 of the Act was deemed given with the consent of the person. Section 7(5) of the Regulations provided a Form authorizing that treatment.

[141] I have found the defendant Dr. Levy was a director of the PAU for the purpose of the Act and had the power to delegate.

[142] On May 9, 1998 the defendant Farivar was the charge nurse on duty in the PAU and was authorized by the defendant Levy as director to sign Part B of the Form 5 Consent to Treatment. That authorization is recorded in writing in a memorandum issued by the defendant Dr. Levy dated July 16, 1997 and is Exhibit 60 entered into evidence by the plaintiff.

[143] The defendant Farivar recalls Dr. Materi had completed and signed the physicians portion of the Form 5 before he received it. Dr. Materi recalled in her examination for discovery, read into evidence by the plaintiff, of speaking to the defendant Farivar about the plan for the plaintiff's management as an involuntary admission under the Act, transfer to the quiet room, her provisional diagnosis, and that “…probably we discussed the medications that I had ordered to decrease anxiety, agitation, or paranoid thought processes.

[144] The defendant Farivar did not become a party in this action until after two years from the event. He did not give evidence at trial but answered interrogatories.

[145] The Form 5, Exhibit 60, introduced in evidence by the plaintiff contained the signed statement of the defendant Farivar that “The nature of the condition, the reasons for and the likely consequence(s) of the treatment(s) have been explained to me by Dr. Materi”. The statement is itself evidence and it is not contradicted.

[146] I am satisfied there was an explanation provided to the defendant Farivar by the defendant Dr. Materi during their discussion as to the nature of the plaintiff’s condition, the reason for treatments and the likely consequence of the treatment.

[147] There is no substance to the plaintiff’s allegations that the defendant Farivar knew or should have known Dr. Materi was not qualified to provide the explanation he required, or that she lacked competence in any degree. I accept the evidence of Dr. Levy and Dr. Ganesan which is entirely to the contrary. I dismiss the action against the defendant Farivar.

DR. LEVY

[148] Dr. Levy is a well qualified psychiatrist and was a director of the PAU and the Medical Manager of the Unit at the time of the plaintiff’s admission May 9, 1998.

[149] Dr. Levy was not present in the PAU on the day the plaintiff was admitted and he first came to his attention on the following day, May 10, when he reviewed the plaintiff’s chart and conducted an interview and assessment. The defendant Dr. Levy again interviewed and assessed the plaintiff on May 11 but on May 12 and 13 the plaintiff refused to speak with him in the absence of legal counsel. Dr. Levy on the basis of the history and his personal examination of the plaintiff found he did require treatment for mania and his continued hospitalization was necessary for his own protection. He found the medication treatment was generally appropriate but he made some modification for improvement. He met and discussed the plaintiff’s condition with his parents but did not accede to his father’s demand for the plaintiff’s release from the PAU as it was his considered opinion the plaintiff remained a danger to himself and that further treatment was necessary.

[150] When the defendant Levy was served with the Writ of Summons in this matter on May 13, 1998 he perceived that placed him in a conflict of interest and his ability to continue to be responsible for the plaintiff’s care and treatment was compromised. He arranged for Dr. Duke to assess the plaintiff in his stead.

[151] In my view, unlike Dr. Ganesan, the defendant Dr. Levy was entitled to assume the certificates signed pursuant to Section 22 of the Act by Drs. Mercier and Ganasen were valid and he was entitled to rely upon them without undertaking a review.

[152] I find Dr. Levy is entitled to the benefit of s. 16(f) of the Act that exempts a person from liability in damages if acting in good faith and with reasonable care in “…taking charge of a person on the authority of properly completed …(i) medical certificates…”.

[153] I find the defendant Dr. Levy acted in what he believed were the plaintiff’s best interests for his care and treatment, including arranging for another doctor to be responsible when a litigation conflict of interest arose. I find no evidence that would support a view that he acted in bad faith. The care he provided was reasonable and consistent with good medical practice for a person suffering hypomania or mania as was the overwhelming effect of the evidence.

SECURITY DEFENDANTS

[154] The plaintiff alleges that the defendant security guards Geoff Brown, Donna Wright, Robert Coleman; Raymond Weipprecht, an orderly; and Western Pacific Security Group Ltd. (“Western”) as employers are liable for the torts of assault and battery, false imprisonment, breaches of the Act and breaches of Charter rights for their role on May 9, 1998 in the plaintiff’s apprehension and detention.

[155] The defendant Brown on May 9, 1998 was the officer or team leader on duty to deal with emergency department security matters including incidents of aggression. He had been employed at VGH since 1995 and had received training at the hospital in aggressive behaviour management, on violent crisis intervention and handcuff training.

[156] The defendant Wright was a staff/sgt and had responsibility for supervision and dispatch of security personnel.

[157] The defendant Coleman was a security officer, but at the time in question was not officially on duty but had arrived at work early. He was asked by the defendant Brown to assist.

[158] The defendant Weipprecht, a hospital orderly, was in the vicinity of the interview room at the time of the incident in issue. He heard a “Code White” alert and stopped to assist in the restraint of the plaintiff and his delivery to the PAU isolation room.

[159] The security personnel’s involvement occurred as a result of the direction of the defendant Dr. Materi. She told the defendant Brown the plaintiff was in the interview room and that he was admitted to the PAU seclusion room and that he was not to leave the hospital. The defendant Brown understood the plaintiff was barricaded in the interview room and that he would "not be happy" about staying in the hospital.

[160] The defendant Brown understood the plaintiff had been “pinked”, or perhaps was in the process of being “pinked”, a reference by reason of the colour of the form of the Certificate for Involuntary Admission under the Act. The defendant Dr. Materi’s recollection was that she advised the defendant Brown that the plaintiff was in the interview room, was going to be admitted, and she was arranging the admission and would be returning. Her evidence is that she did not say he had been certified and she had not really turned her mind to him leaving the hospital. Whatever the precise nature of the discussion between the defendant Dr. Materi and the defendant Brown I accept it was clear that the defendant Dr. Materi was directing that the plaintiff be detained until her return. Her direction was more than just a request that they “stand by” in case they would later be needed.

[161] It is also clear that the security personnel were not trained in respect of the requirements of the Act, nor were they required to be assured there were two signed certificates for an involuntary admission and detention under the Act before they would detain a person.

[162] The defendant security personnel did not ask to see the certificates before seizing and detaining the plaintiff with assaults committed in the process. There is no evidence to suggest the security personnel had any reason to believe the plaintiff was dangerous or violent, or had even been told not to leave the hospital. That a person “may not be happy” to learn he is to remain in hospital is not an appropriate basis to first imprison and physically restrain him.

[163] The evidence is that the security personnel act on the direction of doctors in restraining and detaining patients. They do not appear to question, seek verification, or exercise independent analysis in respect of implementation of involuntary admissions and detentions under the Act. That is what the defendant hospital wishes them to do and they must therefore stand fully responsible as employer for their conduct.

[164] These defendants argue that a brief period of detention before the second certificate [Dr. Ganesan’s] was completed is justified on the basis of the common law defence of necessity. I reject that argument as I did in relation to the defendant Dr. Materi. When Dr. Materi first spoke to the defendant Brown possibly no certificates had been signed and they knew of no facts justifying necessity for arrest and detention, however the intention of the security personnel team assembled from that point on was that the plaintiff was to be confined to the interview room – forcibly if necessary.

[165] The defendant security personnel also seek to rely upon the exemption under s. 16 of the Act that they were acting in “…good faith and with reasonable care in (f) …transporting or taking charge of a person on the authority of properly completed medical certificates…” The entire involvement of the security personnel however had clearly occurred prior to there being two signed medical certificates as required by the Act.

[166] The defendants also apply for a dismissal of the action against them pursuant to Rule 40(8) and Rule 57 on the basis of a Limitation Act defence.

[167] The defendants Brown, Wright, Coleman and Weipprecht were added or substituted as defendants by the Order of Master Donaldson on November 28, 2000 and that Order reserved to trial the issue of a limitation defence. The defence is pled at paragraph 15 of the Statement of Defence of these defendants.

[168] The claims against the individual defendants under s. 3(2)(a) and (d) of the Limitation Act in respect of damages for injury to person or property or for false imprisonment were limited to two years from the date the right to commence an action arose which would have occurred on or about May 15, 1998 when the plaintiff was released from the PAU.

[169] Section 6(4) of the Limitation Act provides that time does not begin to run until the identity of the defendant is known to the plaintiff and:

(4) Time does not begin to run against a plaintiff with respect to an action referred to in subsection (3) until the identity of the defendant is known to the plaintiff and those facts within the plaintiff's means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that

…

(b) the person whose means of knowledge is in question ought, in the person's own interests and taking the person's circumstances into account, to be able to bring an action.

[170] A demonstration of due diligence in seeking the identification of a person sought to be added to an action after the expiration of a limitation is required. [Krusel v. Firth (1991), 58 B.C.L.R. (2d) 145 (C.A.); Tutinka v. Mainland Sand & Gravel Ltd. (1993), 86 B.C.L.R. (2d) 145 (C.A.)]

[171] The defendant’s argue that the identities of parties could have been easily ascertained within the two year time limited. The defendants further argue that the plaintiff had facts within his means of knowledge, that on an objective basis a reasonable person, knowing the facts, and upon the taking of appropriate advise , would have regarded the facts as showing that an action would have a reasonable prospect of success viewed in light of his particular circumstances and in his own interest the plaintiff could reasonably have brought an action. [Vance v. Peglar (1996), 138 D.L.R. (4th) 711 (B.C.C.A.); Novak v. Bond, [1999] 1 S.C.R. 808]

[172] The Writ of Summons and Statement of Claim was issued hastily May 12, 1998. There were several errors in the names and spelling of names requiring amendment. There were six “John Doe” defendants.

[173] The defendant VGH delivered its first List of Documents and the documents including 68 pages of hospital chart were delivered October 30, 1998. I accept the information recorded on the hospital charts is not easily read and comprehended because of coding, symbols, medical terminology, slang, short forming and illegible writing.

[174] Dr. Levy was first examined for discovery January 20, 1999 and April 19, 1999 and an Order was made correcting names of existing defendants, adding two defendants (Drs. Mercier and Ganesan); John Doe 5 was deleted and Jane Doe was substituted for John Doe 6.

[175] Further examinations of the defendants Dr. Levy and Dr. Materi were held In October and November 1999.

[176] The application to substitute the defendants Brown, Wright, Coleman and to add defendants Weipprecht and Farivar was by Motion of September 28, 2000 but not heard until November 28, 2000.

[177] The identity, involvement, and ability of counsel to have converted by substitution or adding of defendants the security personnel, the orderly Weipprecht and the nurse Farivar was available well within the limitation period prior to May 2000 and I find the plaintiff has given no basis for an extension of the limitation under s. 6(4) of the Limitation Act.

[178] Section 4(1)(d) of the Limitation Act however provides that expiration of time under s. 3 of the Act is not an absolute bar to adding or substituting new defendants to an existing action “…with respect to any claim related to or connection with the subject matter of the original action”. The expiration of the applicable limitation period is however a factor to be considered in the Court’s discretion to add or substitute a party under Rule 15 of the Rules of Court.

[179] In Lui v. West Granville Manor Ltd. (1987) 11 B.C.L.R. (2d) 273 at 302, Lambert J.A. held that even though a fully accrued limitation defence would be defeated and an extinguished cause of action reversed:

… the court has power to permit or prevent proceedings which would bring in a new party by counterclaim, third party proceedings, or the addition or substitution of a party, and that the power is granted in wide enough terms to permit consideration of whether a limitation defence will be removed by its exercise; and, second, on the relevant guideline governing the exercise of the power, that the removal of a limitation defence is a factor that the court may consider in deciding how to exercise its power to permit or prevent proceedings which have the effect of bringing a new party into an existing action.

[180] Certainly the plaintiff’s claims and allegations involving the security personnel are so intertwined with his claims against the doctors and hospital that there exists “…a real and substantial connection…”.

[181] The security personnel were effectively an extension or agent of the doctors who directed them in their involvement with the plaintiff. They also seek the same protection under the Act sought by the doctors who direct them. The hospital sanctioned the policy and procedures of the security personnel involvement.

[182] The delay here in adding and substituting security personnel was not lengthy, the motion to add being launched only four months past the primary two year limitation period. The presence of the John and Jane Doe defendants always signalled an intention there would be additional defendants and I do not see there is any significant prejudice to the defendants. The VGH as employer has been a party from inception and therefore well able to conduct necessary investigations and preserved needed information

[183] I will exercise my discretion under Rule 15(5)(a)(ii) and (iii) and confirm the Order of Master Donaldson of November 28, 2000 adding and substituting the security defendants and the defendants Weipprecht and Farivar as necessary parties.

[184] It is argued on behalf of the defendant Coleman that he took no part in the apprehension and detainment of the plaintiff but was just helping out by positioning himself to keep the public from entering a hallway which could be a possible exit to the plaintiff. I disagree with this view of the defendant Coleman’s role. He was an integral part of the team plan as deployed to confine the plaintiff to the interview room. The plaintiff was in fact being confined to the interview room before he himself was aware of it.

[185] The implication is clear that as part of the team implementing the plan to control and confine the plaintiff the defendant Coleman was prepared to follow the direction of the team leader Brown.

[186] I do not accept the defendants argument they were simply “…meeting VGH’s common law obligation to maintain a reasonable level of supervision and security for patients and visitors and to contain any dangerous or violent situations on the premises". There was no dangerous or violent situation prior to the defendant Dr. Materi ordering their intervention.

[187] The actions taken by the security guards may be explained, but not legally justified, by the orders under which they were operating. The force used may only have been commensurate with that needed to safely restrain and detain the plaintiff in the circumstances. They however had no right to restrain and detain him. They chose to act entirely on the view of the instructing doctor and where that doctor has no foundation for the detention that cannot excuse the action of these defendants cannot be excused.

CONSTITUTIONAL CHALLENGE

[188] The plaintiff’s position is that he was misdiagnosed by the medical defendants as suffering a serious mental disorder and his apprehension and detention in the PAU was unlawful for which he seeks an award of general, aggravated and punitive or exemplary damages.

[189] The defendants, inter alia, seek the protection of the immunity from liability provisions of s. 16 of the Act on the basis they acted reasonably and in good faith.

[190] The plaintiff reacts that the Act must be invalid if it could authorize the involuntary committal and treatment of persons, as he viewed himself, not suffering a serious mental disorder.

[191] In this fashion has a private dispute between the plaintiff and the defendants evolved to include a public law dispute as to the validity of British Columbia’s mental health legislative scheme. The plaintiff’s challenge is however misguided, as if defendants acted in accordance with the Act, in good faith and for no improper purpose they would not be held liable in damages even if the Act were subsequently held invalid. [Schachter v. Canada , [1992] 2 S.C.R. 679 at 719-20; Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405 at ¶78-81; Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347 at ¶18-19; Quebec (Human Rights Commission) v. City of Montreal, [2004] 1 S.C.R. 789]

[192] The constitutional challenge need not therefore be considered when the purpose for it being raised is to obtain damages, as at best it would result in a bare declaration of invalidity.

[193] The plaintiff’s constitutional challenge is based upon whether the Act is constitutionally invalid if it authorizes his detention and treatment even though he does not suffer from a mental disorder.

[194] In broad measure the plaintiff challenges the Act as being an unjustifiable violation of ss. 7, 8, 9, 11 & 12 of the Charter as it:

· includes committal criteria that are vague and overbroad;

· lacks sufficient procedural safeguards for review of the detention of persons involuntarily committed;

· lacks criteria necessary to protect persons from the arbitrary actions of physicians;

· fails to protect persons from the stigma of being declared mentally ill;

· fails to promote conditions which would guarantee the dignity of persons who have been committed;

· fails to protect against unreasonable search and seizure, cruel and unusual punishment and arbitrary detention; and

· fails to properly provide for the right to counsel upon detention.

[195] The plaintiff also by amendment to his Notice of Constitutional Question adds s. 2 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181 (“HCCA”) as unjustificably infringing on s. 15(1) of the Charter as excluding persons with mental disorder from provisions requiring physicians to obtain a patient’s informal consent to treatment, or alternatively the informed consent of a substitute decision maker.

[196] The plaintiff questions the validity of the Act for not requiring physicians to obtain a mentally disordered patients informed consent to treatment, or that of a substitute decision maker, like the requirement under the HCCA for persons who suffer from a physical illness.

[197] The plaintiff added during argument that the Act violates s. 15(1) on the ground that persons found not criminally responsible by reason of a mental disorder (“NCRMD”) under the Criminal Code receive more favourable treatment than does a law abiding mentally disordered person who meets the Act’s criteria for committal.

[198] In relation to the plaintiff’s challenge of the validity of the Act on grounds it wrongly authorizes detention and treatment of persons who allegedly do not suffer from a mental illness. I have found the evidence does not support the plaintiff’s contention that he was misdiagnosed. The provisional diagnosis of Dr. Materi was more likely correct as it was supported by the medical opinion evidence.

[199] Even if the plaintiff was misdiagnosed that error and resultant committal, detention and treatment cannot be said to be authorized by the Act, as the Act only applies to a person suffering a mental disorder.

[200] The question in this case is not whether the Act violates the constitutional rights of persons suffering a mental disorder but is whether the Act is constitutionally invalid as explicitly or impliedly authorizing involuntary committal and treatment of persons not suffering from a mental disorder. In the present context therefore the focus must be whether the Act was drafted so as to authorize infringement of the constitutional rights of persons who do not suffer a mental disorder and ought not to be affected by the Mental Health legislation.

STANDING

[201] The plaintiff denies he suffered from a mental illness or disorder for the purposes of the Act. That position determines the plaintiff has a lack of standing to litigate a constitutional challenge to the Act as it affects persons who do suffer from a mental disorder. The plaintiff seeks to litigate the Charter rights of others and that absent the exception of a public interest standing he cannot do.

[202] Charter rights should be adjudicated upon only when necessary to ensure they are approached incrementally and within proper contest. [Abrams v. Collins, [2002] B.C.J. No. 2917, 2002 BCSC 1774, aff'd [2004] B.C.J. No. 376, 2004 BCCA 96; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at 1326-1334, 1351-1356; and MacKay v. Manitoba, [1989] 2 S.C.R. 357]

[203] The plaintiff not only questions the applicability of the Act to him, but he alternatively argues that if the provisions of the Act and Regulations are properly construed in his case they are as a consequence constitutionally invalid. It is the alternate argument which raises the question of standing.

[204] The plaintiff’s case is based upon his denial that he is not a mentally disordered person for purposes of the Act and there is no alternative pleading that if he is found to have been a mentally disordered person for purposes of the Act, it is nonetheless invalid on constitutional grounds.

[205] The plaintiff therefore claims no direct interest in the operations of the Act as they relate to persons with mental disorders; rather his interest is to challenge the Act if it authorizes the committal and treatment of persons who do not suffer form mental disorders.

[206] I conclude the plaintiff does lack private interest standing and must satisfy the test for public interest standing to proceed with his constitutional challenge.

[207] In Canadian Council of Churches v. Canada (Minister of Employment and Immigration), supra p. 253 the Court delineates considerations of whether:

a) there is a serious issue to be tried;

b) it is established that the plaintiff is directly affected by the legislation or has a genuine interest in its validity; and

c) there is no other reasonable and effective way to bring the issues before the court.

[208] The plaintiff cannot met the criteria to obtain standing on the basis “…there is no other reasonable and effective way to bring the issues before the court", when anyone who actually does suffer from a mental disorder or mental illness pursuant to the Act is clearly in a position to bring the challenge.

VIOLATION OF S. 7 OF THE CHARTER

[209] The plaintiff’s challenge raises the question of whether the Act is constitutionally invalid by authorizing the committal and treatment of persons who do not suffer from mental disorders.

[210] A plain reading of the Act does not found an authorization for the committal and treatment of anyone other than those persons suffering from a serious mental illness. The Act can clearly be read so it complies with the Charter where what is at issue is the constitutional right not to be detained or treated unless they suffer from a serious mental illness. [Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559; Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038 at 1065-1084; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.

[211] The allegations that the plaintiff makes as being violations of ss. 7, 8, 9, 11 and 12 of the Charter may be viewed as if they were violations of s. 7 as it is of broad application and encompasses each of alleged violations. [McCorkell v. Riverview Hospital (Director), supra at ¶41]

[212] The onus in a s. 7 Charter analysis lies upon the plaintiff to demonstrate a deprivation of the right to “life, liberty and security of the person” and secondly that the deprivation is contrary to the principles of fundamental justice. If the onus is met the Crown must then show the infringement is demonstrably justifiable in a free and democratic society. [R. v. Beare, [1988] 2 S.C.R. 387, at ¶401]

[213] The plaintiff’s liberty was clearly curtailed allegedly pursuant to the Act. The remaining question is whether the deprivation accords with the principles of natural justice. The requirement of fundamental justice will vary in accord with the context. [Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869 at 884]

[214] The context of the purpose of the Act and Regulations is detention of persons only for the purpose of treatment. [McCorkell, supra at ¶51; British Columbia (British Columbia (Forensic Psychiatric Services Commission) v. British Columbia (Mental Health Act Review Panel), [2001] B.C.J. No. 2518, 2001 BCSC 1658, at ¶42]

[215] The plaintiff alleges the Act is vague but failed to present evidence or argument in support. The plaintiff did not identify words or phrases in the Act as being so vague as to be unconstitutional.

[216] I do not find that the definition of mental disorder, or the criteria for involuntary committal or treatment under the Act fails a test of vagueness.

[217] To suggest the legislation must ensure no mistake of diagnosis could ever occur is not an appropriate requirement. The purpose of the legislation must be fostered by the language employed and not defeated by it. The procedural requirements including those of certification for involuntary committal, reviews, and rights to counsel and advice must be viewed to determine the fair and appropriate balance between liberty rights of persons with mental disorder (or someone who might possibly be misdiagnosed) and the interest of the public in protecting persons with mental disorder and assuring public safety.

OVERBREADTH

[218] I agree with counsel for the Attorney General that this allegation lacks clarity in the Notice of Constitutional Question and written submissions but the “tenor of the case” appears to suggest that:

· the legislators have overreached their intended purpose or target;

· the Act is “overbroad" because detention can only be justified on grounds of dangerousness.

[219] I see no evidence nor rational argument to support the first proposition. As to the second the plaintiff has no standing to argue for persons suffering a mental disorder who are not to be detained or treated unless they represent a danger to themselves or others as he disavows being a person with a mental disability.

[220] In any event I support the finding of Mr. Justice Donald in McCorkell, supra at ¶71 (a case where the plaintiff was suffering a mental disorder) that the committal criteria under the Act is constitutionally valid.

[221] The plaintiff’s allegation regarding damages attributable to the stigma of being associated with mental illness is badly misconceived and has no application to an argument of constitutional law. It is not appropriate to a consideration of the validity of the Mental Health legislative regime. If the Act and Regulations were concerned with stigma the legislation would fail to be of assistance to those in need of protection and be an attack on the dignity of those who suffer mental illness.

[222] The right to counsel in the present case must be viewed in the context of reasonable delay where the doctors involved were of the opinion the plaintiff was incapable of the rational thought process inherent in instructing counsel.

[223] In the present context the right to counsel is a red herring in that the plaintiff was in fact visited by counsel within four hours of his detention.

[224] The plaintiff alleges cruel and unusual punishment. I agree entirely with submissions of counsel that he plaintiff was not being subjected to punishment at all. I have found that he was not detained in accordance with the Act, but that was not in any sense to punish him and the intention was clearly to aid him.

[225] I find no evidence in support of the view that the Act or Regulations permits or authorizes cruel or unusual punishment. It permits medical treatment for the mentally disordered and that is the treatment that was accorded the plaintiff by the defendants.

[226] I dismiss the plaintiff’s claims for constitutional remedies based upon his standing as a person who does not claim to be mentally ill or suffer a mental disorder. As previously indicated I reject the plaintiff has standing to bring a constitutional challenge on behalf of persons suffering a mental illness or disorder.

[227] The constitutional issues are far too important to persons who have the appropriate standing to decide them in this proceeding. I decline to grant the plaintiff’s application for declaratory relief on the ground that relief is both unnecessary and unavailable in the circumstances of this action.

DAMAGES

[228] I have found the defendants Dr. Materi, Dr. Mercier, and Dr. Ganesan negligent and responsible for the apprehension and false imprisonment of the plaintiff. The defendant security personnel and the orderly Weipprecht are liable for the false arrest and imprisonment of the plaintiff and for assault and battery during his apprehension, restraint and custody.

[229] The defendant hospital is vicariously liable as employer for the liability of all these defendants save Drs. Ganesan and Mercier who I accept were independent contractors.

[230] I accept that Dr. Ganesan and Dr. Mercier were not employees of the defendant VGH and the hospital is not vicariously liable for their torts. [Yepremian et al v. Scarborough General Hospital et al. (1980), 110 D.L.R. (3d) 513 (Ont. C.A.); as followed in British Columbia in Postnikoff v. White, [1998] B.C.J. No. 1032 (S.C.) at ¶33; Zeledon v. Kelowna General Hospital, [1996] B.C.J. No. 2868 (S.C.) at ¶50-52; Stewart v. Noone, [1992] B.C.J. No. 1017 (S.C.) at p. 15]

[231] Dr. Ganesan and Dr. Mercier are akin to independent contractors and although appointed to the medical “staff” on an annual basis they were paid on the basis of sessional agreements to attend the hospital for a specified block of time.

[232] Dr. Ganesan was paid from the Health Ministry for patients who were without medical coverage and billed on a fee basis for patients with coverage. He worked through his personal corporation for income purposes.

[233] Dr. Mercier was one of a number of emergency physicians who contracted as a group to provide services to the hospital emergency department.

[234] The plaintiff claims for general damages, aggravated damages, punitive or exemplary damages and special damages although he failed to plead punitive damages.

[235] The plaintiff in May 1998 was 42, single, self employed, and in good health when he first had symptoms of the nature which led him to the hospital at the time in question and that he attributes to Critical Incident Stress.

[236] His attendance at hospital a week earlier was attributed by the Emergency physician to a panic attack. On the May 9, 1998 occasion now in question Dr. McKnight did not find he was suffering any serious mental disorder requiring involuntary committal but suggested he wait to see a physiatrist for further assistance.

[237] The plaintiff was therefore attending for an interview at the PAU voluntarily and to seek assistance. He wrote out some notes to assist in providing background. He had strong views against medication and wrote instructions that he did not wish to be medicated. He was co-operative in his interview with the Defendant Dr. Materi. She did not discuss treatment options nor request or suggest he stay as a patient.

[238] The plaintiff had been at the hospital overnight and then participated in a 10 km charity run and he was tired. When Dr. Materi left him to arrange to see another psychiatrist or to decide on recommendations he wanted to sleep and he locked the door for privacy. There was no suggestion he wished to barricade himself. There is no truth to the suggestion that somehow arose that he was in the habit of “walking away”.

[239] The plaintiff was awakened by the noise of security personnel assembling in the hallway and the chatter from their radios. When he opened the door he saw the assembled and uniformed security personnel and he was ordered to remain in the room. He was naturally shocked, alarmed, and undoubtedly whatever his mental condition had been it was now severely aggreviated.

[240] The plaintiff was blocked by security personnel when he tried to leave. He struggled to be free of them and he was forced to the floor and pinned face down by several acting in concert. He was pulled to his feet, restrained by the arm on each side, and still struggling to be free he was manoeuvred down the hall and into the isolation cell at the PAU.

[241] The isolation cell is an austere concrete walled cell, with no windows and a secure door with only a small observation window. It is of drab color and without any furnishing except for a raised concrete platform with a mattress that serves as a bed and a wall mounted combination stainless steel toilet and sink. It is meant to be drab so that it provides no stimulation to an occupant. It achieves that goal. It is as unpleasant as most jail cells.

[242] The plaintiff was held face down on the mattress, de-nuded by having his clothes cut from his body, sedated by injection, and his feet tied with a sheet to provide a temporary mobility restraint to allow the security personnel to exit the cell and lock the door.

[243] The plaintiff was later moved to a bedroom unit with a locked door. The plaintiff was initially medicated by injection because he would not agree to voluntarily take medications. Later he agreed to take medication but only on threat that if he did not he would be injected by force.

[244] I do not find the security personnel used more force, or severe restraint techniques, than was appropriate to confine a person of the plaintiff’s substantial stature and strength who was actively resisting his arrest. They did not however have the authority to arrest and detain him. The entire incident was a violent one.

[245] The forced confinement of the plaintiff and the assault and battery by the involuntary giving of medication continued for a period of five days with his ultimate release by Dr. Duke only allowed on condition he continue the medication under the supervision of a private physician.

[246] A further component of the general damages claimed by the plaintiff is that he has suffered recreational use loss, and a loss of earning capacity, because of his lapsed pilot licence and the consequent inability to fly aircraft which he attributes to the wrong diagnosis of mania.

[247] The loss of earning capacity relates to an inability by him to earn income by flying commercial aircraft or by interference with his business of selling helipad equipment and related aeronautic supplies due to the necessity that he keep up to date with problems of pilots and familiarity with the products available to provide solutions.

[248] Damages in respect of this component have not been proven. No qualified person gave evidence that his admission to the PAU now prevents him being licenced. There is no evidence the plaintiff’s inability to be licenced is other than his refusal to provide the required medical examinations and information. I do not accept the suggestion that he cannot take the required examination until he first shows Dr. Materi was wrong in her diagnosis, however even if that is so he has failed to prove she was wrong.

[249] In any event the plaintiff offers no evidence as to diminution of earnings or capacity attributable to his ability to market helipads or aeronautic products.

[250] The criteria to found an impairment to earning ability and the evidence to assess diminution of earning capacity was simply not addressed in the evidence. [Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.); Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.)]

[251] In a similar fashion the plaintiff seeks as a component of general damages compensation for an inability to obtain life and accident insurance. There is again simply no evidence that his admission to the PAU has impacted his ability to obtain life or accident insurance.

[252] The plaintiff’s claim for punitive or exemplary damages is completely devoid of merit. Those damages are to punish the defendants and to deter like future conduct. It was not pleaded and certainly not supported by the evidence.

[253] The standard to base a claim of punitive damages requires:

… the kind of conduct that attracts exemplary damages has been described with a wide variety of colourful words and phrases. These include: malicious, high-handed, arbitrary, oppressive, deliberate, vicious, brutal … evil, outrageous, callous, disgraceful, wilful, [and] wanton …

[254] I find the circumstances here do however support allowing for a component of aggravated damages to account for aggravating features of the plaintiff’s apprehension, false imprisonment, and subjection to medication by force.

[255] The goal of aggravated damages are appropriate where there has been humiliating or undignified circumstances, and that is the case here. He was seized without explanation, assaulted and physically overpowered in the hallway of a public hospital; dragged to a cell, stripped naked by cutting off his clothes, forcibly medicated, and his continued compliance assured by jail like security.

[256] The defendants seek mitigation of damages to a nominal level on the basis the false imprisonment occurred in circumstances of their acting reasonably and in good faith.

[257] I do not quarrel generally with the good intention of the defendants in their work and with their lack of malice or ill will toward the plaintiff but I have found their actions were not reasonable and were in fact negligent, in breach of the Act, that the plaintiff was wrongfully apprehended, detained, assaulted, and their actions not found capable of immunity under s. 16 of the Act.

[258] The defendants suggest general damages within a range of $1,000 to $5,000 [Ketchum v. Morris, [1977] B.C.J. No. 456 (S.C.); N.H. (Guardian ad litem of) v. Latimer, [1999] B.C.J. No. 1779 (S.C.); and Lebel v. Roe, [1994] Y.J. No. 62]. The plaintiff seeks damages in a range of $50,000 to $100,000. [Y. (A.D.) v. Y. (M.Y.) (1994), 90 B.C.L.R. (2d) 145 (S.C.); Norberg v. Wynrib, [1992] 2 S.C.R. 226]

[259] I consider the defendant’s range in the circumstances extraordinarily low and the plaintiff’s unrealistically high.

[260] In the circumstances here and with aggravated damages taken into account I assess the plaintiff’s general damages as $15,000.

[261] The plaintiff also claims special damages for the cost of his destroyed clothing and the cost of post-release medication required to reduce his dependence acquired during his enforced stay in the PAU. I allow those expenses and would expect counsel can agree as to the amount. In the event they cannot agree as to amount they have leave to apply.

[262] I do not allow the cost of other post-release medical treatment or post release stress debriefing as being proven causally related to any problem the plaintiff did not have prior to his admission.

[263] The order the plaintiff seeks against the hospital for the delivery up and destruction of the hospital records is dismissed. It is not relief sought in the Statement of Claim. It is contrary to s. 51 of the Hospital Act, and so far as I am aware without precedent. The preservation of hospital and patient records is very important to the protection of a persons future health requirements as well as determination of legal matters.

[264] It appears in any event to have been a constitutional challenge remedy which is not now in issue.

[265] The plaintiff is entitled to costs on scale 3 from the defendants found liable. The parties will bear their separate costs in relation the Constitutional Question issues.

“R.R. Holmes, J.”

The Honourable Mr. Justice R.R. Holmes

Citation:	*Mullins v. Levy,*
	2005 BCSC 1217