IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140425

Docket: S064560

Registry:
Vancouver

Between:

Clay Ronald
Stewart

Plaintiff

And

Dr. Ian Postnikoff

Defendant

Before:
The Honourable Mr. Justice Walker

Reasons for Judgment

INTRODUCTION

[1]            
This case concerns false imprisonment and medical malpractice.

[2]            
The plaintiff, Clay Stewart, advances a number of claims against a
psychiatrist, the defendant, Dr. Ian Postnikoff, who certified him under
the Mental Health Act, R.S.B.C. 1996, c. 288 (“MHA”) while Mr. Stewart
was incarcerated at a psychiatric hospital operated by Correctional Service
Canada (“CSC”). Mr. Stewart’s primary claim is that Dr. Postnikoff improperly
certified him (“Certification”) in breach of s. 22 of the MHA on
September 29, 2004.

[3]            
Mr. Stewart alleges the Certification was invalid because Dr. Postnikoff
did not meet with him or personally observe him before issuing the Certification.
Mr. Stewart claims that the Certification was meritless and part of an
overall plan by correctional authorities, Dr. Postnikoff, and other medical
professionals working for CSC to keep him detained in institutional custody as
long as possible.

[4]            
Mr. Stewart also alleges other tortious misconduct on the part of Dr. Postnikoff.
His four additional allegations did not form part of his pleading but were,
instead, advanced during trial as an adjunct to his claim that the Certification
was meritless and invalid.

[5]            
First, he disputes Dr. Postnikoff’s diagnosis that he suffers from
paranoid schizophrenia.

[6]            
 Next, Mr. Stewart claims that he was not promptly advised of his
rights under the MHA following the Certification.

[7]            
Third, Mr. Stewart alleges that Dr. Postnikoff worked with
other medical professionals and correctional authorities to block his efforts
in two respects. He says that they tried, albeit unsuccessfully, to block him
from pursuing his sentence appeal to the Supreme Court of Canada. Mr. Stewart
also claims that together with other medical professionals and correctional
staff, Dr. Postnikoff inappropriately blocked him from circulating an
information bulletin (“Bulletin”) to fellow inmates at Kent Institution (“Kent”),
which is a maximum security facility, to explain the circumstances that gave
rise to certain stayed criminal charges concerning alleged sexual assaults.

[8]            
Finally, Mr. Stewart says that Dr. Postnikoff administered
treatment without his informed consent.

[9]            
Mr. Stewart seeks damages from Dr. Postnikoff, primarily as a
result of the Certification because he says that it kept him detained in the custody
of CSC 10 days past his warrant expiry date (which is his statutory
release date) on which Mr. Stewart was supposed to have completed his
prison sentence for his conviction of certain criminal offences. In addition to
seeking recovery for non-pecuniary damages, Mr. Stewart claims that he suffered
wage loss as a result of his being held in custody beyond his warrant expiry
date and that he will suffer future income loss as a result of being diagnosed by
Dr. Postnikoff as a paranoid schizophrenic. He also claims that his life
is in constant danger because he was not able to circulate the Bulletin.

[10]        
In his defence, Dr. Postnikoff admits that he did not meet with Mr. Stewart
prior to issuing the Certification, but says it was due to a crisis at the psychiatric
facility that prevented him from seeing Mr. Stewart until the next day.
None of the information he obtained during the interview with Mr. Stewart
the following day caused Dr. Postnikoff to change his assessment. Dr. Postnikoff
submits that neither the MHA nor the standard of practice in British
Columbia require him to have carried out an in-person assessment of Mr. Stewart
as part of the certification process. In his defence, he submits that the
Certification and Mr. Stewart’s continued detention were lawful, and that
in exercising his clinical judgment to certify Mr. Stewart, he
appropriately and in good faith relied upon collateral evidence. Dr. Postnikoff
also denies any involvement with Mr. Stewart’s appeal to the Supreme Court
of Canada and his efforts to circulate the Bulletin. Dr. Postnikoff has
also raised a limitation defence because the lawsuit was commenced beyond the
expiry of the limitation date.

THE ISSUES FOR DETERMINATION

[11]        
Though not formally described in this way in his pleading, Mr. Stewart’s
claims against Dr. Postnikoff rest on false imprisonment and negligence.

[12]        
Mr. Stewart has the burden of proving false imprisonment. He must
demonstrate that he was totally deprived of his liberty, against his will, and that
the deprivation was caused by Dr. Postnikoff: V.A.H. v. Lynch, 2008
ABQB 448 at paras. 182, 210. Dr. Postnikoff bears the onus of proving
his defence that he acted under legal authority – the MHA – in having Mr. Stewart
detained against his will.

[13]        
To prove negligence, Mr. Stewart must establish that Dr. Postnikoff
breached what he acknowledges was his duty of care to Mr. Stewart by
failing to exercise the standard of care required of a reasonable and careful
person in the circumstances and that he suffered loss caused as a result. Dr. Postnikoff’s
conduct is judged on the standard of other ordinary, average specialists in the
same field who possess a reasonable level of knowledge, competence and skill
expected of professionals in this country and in that field. He is not required
to meet the standard of perfection: ter Neuzen v. Korn, [1995] 3 S.C.R.
674 at paras. 33, 38; Carlsen v. Southerland, 2006 BCCA 214 at paras. 13-15.

[14]        
The general rule in medical malpractice cases is that the trier of fact
is not in a position to assess the standard of care nor able to determine if
the defendant doctor has met it without the assistance of expert evidence. The
exception, which does not apply in this case, is that expert evidence is not
required where the doctor’s conduct in question involves the taking of proper
precautions for something which an ordinary person is competent to determine or
is a matter of common sense as opposed to a matter of technical skill and
expertise: ter Neuzen at para. 44; Anderson v. Chasney,
[1949] M.J. No. 54 at para. 9 (C.A), aff’d [1950] S.C.J. No. 50.
The assessment of a mental illness is one of professional clinical judgment: N.H.
(Guardian ad litem of) v. Latimer, [1999] B.C.J. No. 1779 at paras. 26-28
(S.C.). Mr. Stewart did not tender any expert opinion evidence that was
critical of Dr. Postnikoff for issuing the Certification or to rebut the opinions
expressed by psychiatrist, Dr. Roy O’Shaughnessy, the standard of care
expert who testified on behalf of the defence.

[15]        
Mr. Stewart’s claims raise a number of issues to be determined. The
central liability issue for determination is whether Dr. Postnikoff was required,
by the MHA or the standard of practice amongst medical doctors
practising in British Columbia, to meet with Mr. Stewart before issuing
the Certification. The corollary issues are whether:

(a)      the diagnosis of paranoid
schizophrenia was appropriately made;

(b)      Dr. Postnikoff
acted in good faith (because if he did, then he is shielded from liability by
s.16 of the MHA if the Certification was invalid);

(c)      Mr. Stewart
was advised of his rights under the MHA following the Certification;

(d)      Dr. Postnikoff
blocked Mr. Stewart’s efforts to circulate the Bulletin to inmates at Kent
and from pursuing his sentence appeal to the Supreme Court of Canada; and

(e)      Mr. Stewart
provided his informed consent to treatment at the psychiatric facility.

[16]        
The remaining issues for analysis and determination are causation and
damages (assuming Dr. Postnikoff is at fault) and whether the postponement
and suspension provisions of the Limitation Act, R.S.B.C. 1996, c. 266
(“Limitation Act”), are engaged. The current Limitation Act,
S.B.C. 2012, c. 13, has no application to Mr. Stewart’s claim against
Dr. Postnikoff because it came into force on June 1, 2013, well after Mr. Stewart’s
cause of action arose.

[17]        
Before I turn to the facts, I wish to point out that throughout the
trial, Mr. Stewart sought to raise for determination, the validity of what
he says is a divine message that he seeks to disseminate to avoid nuclear war,
the merits of his version of events that led to the stayed charges (in order
to, as he put it, “clear my name”), and the merits of his excuse that he failed
to commence this action within the time limits set out in the Limitation Act
because of certain alleged advice given to him by staff at the Vancouver Law
Courts civil registry. For the reasons set out in the next paragraph, this
trial does not and cannot include any consideration of those claims.

[18]        
Previously, Dr. Postnikoff succeeded in having all of Mr. Stewart’s
original claims dismissed on a summary trial application. Mr. Stewart’s appeal
to the Court of Appeal was allowed in part. The Court of Appeal ordered that
only Mr. Stewart’s claim against Dr. Postnikoff for negligence in
respect of the Certification and for his alleged breach of s. 22 of the MHA
be remitted to trial. Consequently, the validity of Mr. Stewart’s
message and the veracity of his version of events surrounding the sexual
assault charges are not appropriate issues for determination at the trial of
this action. In addition, Mr. Stewart’s claim that he relied on advice
from registry staff at the Vancouver Law Courts to excuse his delay in starting
this action was previously dismissed for lack of merit: 2010 BCSC 1878, aff’d
2012 BCCA 305.

FACTS

[19]        
In this section, I set out my findings of those facts necessary to determine
the issues at trial.

A. The Liability Issues

(a)      RTC

[20]        
Mr. Stewart was a patient at a mental health facility operated by
CSC called the Regional Treatment Centre, Pacific (“RTC”). The RTC is located
in Abbotsford and is part of a larger institution known as the Pacific Centre.

[21]        
The RTC houses inmates who, after having been sentenced to serve
custodial time greater than two years in a federal correctional facility, require
treatment for mental health disorders. Although the RTC is a hospital, it is nonetheless
part of a correctional institution maintained by CSC. It is a prison as well as
a hospital. The patients are inmates who have been sentenced to serve custodial
sentences in federal prisons. As with any correctional facility, the RTC may be
closed or “locked down” on a moment’s notice if CSC staff determine that
security and safety of staff or patients are at risk. By way of example, an
altercation amongst patients or discovery or suspicion of contraband (such as
weapons or drugs) brought into the facility would result in a lockdown. When a
lockdown occurs, patients are confined to their cells. Security and safety
predominate. Often, but not always, medical staff, including psychiatric
nurses, psychologists, and psychiatrists, are not permitted to see patients due
to security concerns. Lockdowns may be brief or may last for hours or days.

[22]        
Inmates at the RTC are under 24 hour surveillance and supervision by
corrections officers and trained psychiatric nurses. Mr. Stewart’s
behaviours and compliance with treatment were monitored by RTC staff on a
consistent, ongoing basis during each of his admissions. Written notes were
made in his chart throughout.

[23]        
The RTC employs a team based approach to treatment. Each patient, as was
the case with Mr. Stewart on each of his three admissions, is assigned a
treatment team that includes a treating psychiatrist, psychiatrist nurses,
corrections officers, a psychologist, occupational therapists, and parole
officers. Information about each patient is shared amongst each member of the
team. In addition, regular weekly meetings are held to discuss all of the
inmates at the facility. As a result of those meetings, called “cardex
meetings”, all of the doctors at the RTC are aware of the issues and treatment
concerning each of the inmates on an ongoing basis. The atmosphere at the
facility encourages an open exchange of information. Nursing staff speak
regularly, and openly, with treating physicians, including psychiatrists, about
their concerns about patients. Mr. Stewart’s team met at least weekly on a
formal basis, and informally, usually on a daily basis, to review his treatment
and care, including his behaviours, condition, improvement or deterioration,
compliance with treatment, and ongoing plan of care. Informal meetings amongst
staff, including the medical professionals, to discuss daily issues for each
patient, including Mr. Stewart, are also common. The front-line staff at the
RTC are vigilant in their reporting, especially for what they perceive might be
a patient’s deteriorating condition.

[24]        
The RTC is not a place of refuge from other correctional institutions.
If an inmate such as Mr. Stewart will not voluntarily undergo treatment,
then absent a mental illness with symptoms that pose a risk for his safety or
the safety of others, the inmate will be returned to their originating
correctional facility.

[25]        
When the Certification was issued, Mr. Stewart was attending the RTC
on his third admission. He was admitted on August 18, 2004. His previous stays
were from June 4 to August 8, 2003 and August 9 to May 19, 2004. Each of his
admissions to the RTC were voluntary, carried out at his own request. Mr. Stewart
provided his consent to treatment for each admission. I reject his submission that
he signed the consent forms under duress. His evidence, as well as other
submissions that he made, demonstrate that he sought admission to the RTC,
voluntarily agreed to treatment, and would sign or say anything in order to
stay there as long as possible to avoid being sent back to Kent. Moreover, each
time Mr. Stewart was certified at the facility, an appropriate individual
at the RTC properly and lawfully signed the consent documents on Mr. Stewart’s
behalf.

(b)      Mr. Stewart’s History Prior to the Certification

[26]        
Mr. Stewart has a lengthy criminal history. It is set out in
greater detail in the Court of Appeal’s reasons for judgment in respect of Mr. Stewart’s
sentence appeal, indexed at 2002 BCCA 463, leave to appeal ref’d, [2006]
S.C.C.A. No. 88. The following summary is sufficient for my reasons for
judgment. Prior to his first admission at the RTC, he had at least 41 prior
criminal convictions. On April 10, 2001, he was sentenced to five years in
custody for convictions of two robberies, assault with use of force, dangerous
operation of a motor vehicle, assault with intent to resist arrest, and assault
causing bodily harm. The sentencing judge took into account Mr. Stewart’s
pre-sentence custodial time of 10 months and sentenced him to an additional 42
months. Mr. Stewart appealed that sentence to the Court of Appeal and then
to the Supreme Court of Canada because he believed that the sentencing judge
took into account the circumstances that gave rise to the sexual assault
charges.

[27]        
Prior to his third admission to the RTC, Mr. Stewart served time in
several custodial facilities including the Mission Institution (“Mission”) and
Kent. He was involved in a number of altercations, including physical violence,
and often displayed aggressive, verbally abusive, and manipulative behaviour. While
Mr. Stewart was in the general population he instigated a fight during the
meal line-up (a high risk situation for violence and other security issues due
to the great number of inmates in one location). In June 2003, staff at Kent
became concerned about his mental health because of his undue preoccupation
with preventing a nuclear holocaust. As I have mentioned, Mr. Stewart
believes that he is in receipt of a divine message that he is obliged to pass
on to the world. He also believes that he has been specifically chosen to
deliver the message to prevent nuclear war.

[28]        
Mr. Stewart was fearful that the information about the sexual
assault charges in his CSC records, which included his sexual relations with a
twelve year old girl that he says he thought was 17, would be leaked to other
inmates. Mr. Stewart wanted to disclose the facts surrounding the sexual
assault charges to all of the inmates through the Bulletin. CSC officials would
not let him do so for fear for his safety. After Mr. Stewart disclosed to
some other inmates the circumstances underlying the sexual assault charges, he was
confined to segregation, away from the general population at Kent, for his own
protection. CSC officials were highly concerned that Mr. Stewart would be
seriously injured or killed if he was sent back into the general population. Mr. Stewart
went on a six-day hunger strike. He thought release of the Bulletin would help
him to “mediate” his way back into the general prison population and ensure his
safety.

[29]        
Mr. Stewart also thought that CSC officials were taking active
steps to block his sentence appeal to the Supreme Court of Canada, including
the timely preparation of an appeal book.

[30]        
Dr. Postnikoff had nothing to do with any aspect of the Bulletin
and its dissemination nor anything to do with Mr. Stewart’s sentence
appeal.

[31]        
He was eventually transferred to the RTC for assessment of his mental
health and treatment. He did not wish to remain at Kent in segregation. He was
admitted to the RTC on all three of his stays as a voluntary patient.

[32]        
On his first admission, Mr. Stewart was initially diagnosed by Dr. Christopher
Hunter, who became his treating psychiatrist, as suffering from a non-specific
psychosis. Dr. Hunter completed his specialty in psychiatry in 1992 and
began work at the RTC in 1993. When Dr. Hunter first assessed Mr. Stewart,
he had 10 years of experience assessing psychiatric inmates. He considered a
possible diagnosis of schizophrenia but could not confirm it, in part because
of the course of time it takes to make that diagnosis and Mr. Stewart had
only just arrived at the facility. In addition to considering schizophrenia as
a cause of Mr. Stewart’s presenting behaviour, Dr. Hunter considered
medical causes (such as a tumour) and substance abuse.

[33]        
Throughout all of his admissions at the RTC, Mr. Stewart demonstrated
hostile, abusive, and manipulative behaviour. Apart from engaging in actual
physical violence, Mr. Stewart continued to display the same pattern of
behaviour and the attitude that he had shown at Mission and Kent. He acted as
if he could become violent very quickly if angered. Members of his various
treatment teams were concerned throughout that he was at risk for recidivism
with violence if he was to be released on parole. There were times that he
threatened RTC staff with physical violence in an effort to get his way. He was
consistently non-compliant with his treatment throughout all of his stays at the
RTC. He made no secret to the medical staff that he did not want to take the
anti-psychotic medication that was prescribed to help treat his mental illness.
From time to time throughout all of his stays at the RTC, he surreptitiously spat
out his anti-psychotic medication even though he assured medical staff that he
had taken it. Mr. Stewart made it very clear in his evidence that his
intention was to stop taking his medication as soon as he stepped outside of
the confines of the RTC. When confronted with his lack of compliance, he
promised to take his medication, but as he testified at trial, he had no
intention of honouring his promises any longer than was necessary to gain some
advantage at the facility.

[34]        
Dr. Hunter continued to assess Mr. Stewart’s mental condition
during his first admission at the RTC. In June and mid-July 2003, Dr. Hunter
observed Mr. Stewart to display thought disorder with intense effect. He
diagnosed Mr. Stewart to be suffering from delusional disorder with a need
to rule out schizophrenia.

[35]        
Another psychiatrist working at the facility, Dr. Raymond Au, took
over Mr. Stewart’s care from Dr. Hunter. Dr. Au worked at the RTC
from July 2003 to January 2004. Prior to working there, he had experience
assessing patients and certifying them under the MHA as part of his
medical residency program. Dr. Au was qualified to certify patients under
the MHA while Mr. Stewart was under his care. On July 28, 2003,
towards the end of his first admission, Mr. Stewart was assessed by Dr. Au.
After Dr. Au interviewed Mr. Stewart and reviewed the records
maintained in his file, he concluded that Mr. Stewart should be certified under
the MHA.

[36]        
Dr. Au’s initial diagnosis was delusional disorder with a possible
diagnosis of schizophreniform disorder (which appears as schizophrenic-like
behaviours) or drug induced psychosis. He found Mr. Stewart lacked insight
into his condition and that he became irritable and threatening when his
beliefs, particularly those involving his message, were challenged. Mr. Stewart
took exception to the diagnosis when informed of it by Dr. Au, so much so
that Dr. Au felt concerned for his own safety.

[37]        
Dr. Au sought a second certification from Dr. Postnikoff. Dr. Postnikoff
has practised as a forensic psychiatrist since 1982. A second certification is
required under the MHA to detain a person for involuntary treatment beyond
48 hours. That second certification, by a different physician, is required to
be issued within 48 hours in order to hold a person for a longer period, up to one
month: MHA, ss. 22-23. Dr. Postnikoff has performed risk
assessments on patients, including offenders within correctional facilities,
for many years. He worked at the RTC starting in 2002. He was the chief psychiatrist
at the facility from May 2003 to February 2007, before he left to work for the
Central Alberta Methadone Program.

[38]        
Dr. Postnikoff met with Mr. Stewart on July 29, 2003. He
assessed all of Mr. Stewart’s risk factors and considered the information
in his file. He accepted Mr. Stewart’s promise to comply with treatment,
including his promise to take his medication. Dr. Postnikoff had no reason
at that time to disbelieve Mr. Stewart. He determined, based on the
limited history of Mr. Stewart’s mental illness and the ameliorating
effects of the anti-psychotic medication that Mr. Stewart promised to
take, that he was not certifiable at that time.

[39]        
Dr. Au met with Mr. Stewart again on July 30 and found that his
condition had improved. He was able to control his anger. That finding combined
with Dr. Postnikoff’s opinion and Mr. Stewart’s continued promise to
take his medication caused Dr. Au to decertify Mr. Stewart. Dr. Au
did not, as Mr. Stewart asserted in his evidence and in argument, take
offence because Dr. Postnikoff disagreed that Mr. Stewart met the
criteria for certification.

[40]        
Mr. Stewart was discharged from the RTC on August 8, 2003. Dr. Au’s
discharge summary contains a diagnosis of “Delusional disorder mixed type[,] [d]ifferential
diagnosis – schizophrenic [sic] form disorder, adjustment disorder.” A
differential diagnosis is a diagnostic tool used by doctors to narrow the range
of other probable and alternative causes of an illness or disease. Dr. Au
was unable to diagnose schizophrenia at that time because in order to make it
the symptoms and behaviours must be present for at least six months.
Schizophrenia is a mental illness that cannot be cured. Its effects may be
ameliorated and in some cases put into remission with treatment, particularly
anti-psychotic drugs. Without treatment, a patient suffering from the illness
will deteriorate. Dr. Au also diagnosed him with an anti-social
personality disorder with paranoid and narcissistic traits. Mr. Stewart’s irritability
and hostile responses were also noted as being much more in control after
taking his anti-psychotic medication for one week.

[41]        
Mr. Stewart’s parole was impending. The majority of the members of Mr. Stewart’s
treatment team recommended that his parole conditions should require him to see
a psychiatrist and to be compliant with medication after his release from
custody into the community. Dr. Postnikoff was the lone dissenter
regarding the second condition. He did not think there was a need for any mandatory
medication requirement because he accepted Mr. Stewart’s promise to take
his medication.

[42]        
Mr. Stewart’s parole was revoked within 24 hours of his release from
custody on August 8, 2003 for breach of his parole conditions. He had spent
over $400 to purchase illicit drugs and was involved in a physical altercation.
He was incarcerated at a correctional facility and then, approximately six
weeks later, on September 19, 2003, Mr. Stewart was readmitted to the RTC.
Three days later, on September 22, on assessment by Dr. Au, Mr. Stewart
was found to continue to present with fixed delusional beliefs with virtually
no insight in the delusional qualities of those beliefs. Mr. Stewart
continued to hold on to his need to deliver his message to the world to avoid a
nuclear holocaust. Dr. Au recorded a diagnosis of “likely schizophrenia”.

[43]        
Mr. Stewart’s condition, behaviour, and presentation, waxed and
waned during his second admission, although it is clear that over time, they
generally worsened. He was eventually certified by the director of the RTC, who
is also a psychiatrist, Dr. Linda Healey, on October 12, 2003. Dr. Au
provided the second certification on October 14. In the certification document,
called a Form 4, Dr. Au made note of Mr. Stewart’s delusional beliefs
about nuclear holocaust and his personal mission to prevent it, his ongoing
history of assaultive behaviour in the facility, his difficulty controlling his
anger when challenged or when he thought his destiny was being impeded, and finally,
the recent marked deterioration in his behaviour.

[44]        
Dr. Au was sufficiently concerned about Mr. Stewart’s mental
illness that he asked Dr. Postnikoff to consider whether Mr. Stewart
should be certified if he refused to take his anti-psychotic medication. Dr. Au
made that request after he completed the second certification of Mr. Stewart
on October 14. He asked Dr. Postnikoff for his opinion because he was familiar
with Mr. Stewart from his past involvement with him.

[45]        
To complete his task, Dr. Postnikoff met with Mr. Stewart
again and reviewed his entire chart as well as the Bulletin and another
document prepared by Mr. Stewart entitled “SIGNS” in which he recorded
some of his visions. Dr. Postnikoff determined that Mr. Stewart was
suffering from a major mental disorder; he diagnosed paranoid schizophrenia. He
found a noticeable deterioration in Mr. Stewart’s condition over the last
two months and opined that further deterioration could be expected in the
absence of treatment with anti-psychotic medication. Despite Mr. Stewart’s
continued promise to comply with the treatment plan and to take his medication,
Dr. Postnikoff advised Dr. Au that should he refuse treatment or
become non-compliant, then Mr. Stewart would meet the definition for
certification under the MHA.

[46]        
Despite ongoing concerns expressed by the medical staff at the RTC about
Mr. Stewart’s medical condition, Mr. Stewart was released on parole
on his statutory release date of May 19, 2004. When he was discharged, Dr. Hunter
(who had resumed his role as Mr. Stewart’s treating psychiatrist) diagnosed
him as suffering from chronic paranoid schizophrenia and a personality
disorder. So long as Mr. Stewart would take his medication, which he said
he would, Mr. Stewart could not be certified under the MHA at that
time.

[47]        
Mr. Stewart’s parole was revoked on August 12, 2004. By his own
admission in his evidence, he had relapsed into cocaine use and was sniffing
solvents. He was reported as highly agitated and hitting walls and doors at his
half-way house while on parole.

[48]        
Mr. Stewart was admitted to the RTC for a third time on August 18,
2004. He was assessed on his admission by Dr. Healey. He presented with
symptoms of schizophrenia. Dr. Healey thought Mr. Stewart was a good
candidate for voluntary admission because he agreed to take his medication and
did not appear agitated. He wanted to be re-admitted to the RTC and to remain
there until his warrant expiry date. On the same day, Mr. Stewart wrote to
the National Parole Board requesting that his parole be revoked. In the letter,
he continued to demonstrate his ongoing obsession with his message and its
relationship to his sentence appeal:

There is also the matter of an
Appeal to the Supreme Court of Canada and the people of the U.S.A. and Canada;
an Appeal that represents a divine Intervention from God to try and prevent
Armegedon from happening.

[49]        
When Mr. Stewart was assessed by Dr. Hunter seven days later,
he was found not to be functioning well. He was dismissive and arrogant. Dr. Hunter
suspected that Mr. Stewart was not taking his anti-psychotic medication. Mr. Stewart’s
evidence was that he acted out with intensity in front of Dr. Hunter in
order to scare him because he would not remove Mr. Stewart’s diagnosis of
schizophrenia from his chart. This was typical of Mr. Stewart’s
manipulative behaviour: if things did not go his way, he would either make
promises he did not intend to keep, or intentionally misstate matters, or
become hostile, verbally aggressive, and threatening.

[50]        
Mr. Stewart’s condition continued to deteriorate. He became
increasingly angry and agitated when challenged or even questioned mildly about
his beliefs. There was considerable concern about his volatility. One nurse
noted that he “could become aggressive to the point of violence if his needs or
beliefs/delusions are not met or believed.” Inappropriate aggressiveness is one
of the symptoms that the psychiatrists look for when assessing the risks posed
by ongoing deteriorating behaviour. Mr. Stewart had no tolerance for
anyone or any task that he believed would impede his ability to deliver his
message. In mid-September, Dr. Hunter ordered a blood test to find out if Mr. Stewart
was taking his medication. Mr. Stewart refused to have blood drawn on two
separate occasions, September 20 and 22. On September 22, Mr. Stewart finally
admitted to Dr. Hunter that he had not been taking his medication. Dr. Hunter
found him to be pre-occupied with his visions, and that he was volatile, angry,
agitated, and defensive. Dr. Hunter asked medical staff to monitor Mr. Stewart
to ensure his compliance with treatment.

[51]        
It is with this backdrop that I turn now to my findings of fact
surrounding the
Certification.

(c)      The Certification

[52]        
Mr. Stewart was certified by Dr. Linda Grasswick prior to the
Certification, on the same day, i.e., September 29. Her certification kept Mr. Stewart
held at the RTC, involuntarily, for 48 hours.

[53]        
Dr. Grasswick was covering for Dr. Hunter, who was still Mr. Stewart’s
regular treating psychiatrist at the facility, while he was away at a
conference. She completed her clinical fellowship in forensic psychiatry in
2001. Dr. Grasswick is specifically trained to assess patients and form
clinical opinions regarding their mental fitness, capacity, and risk of harm
they might pose to themselves and others including the public.

[54]        
Before he left, Dr. Hunter asked Dr. Grasswick to monitor Mr. Stewart.
He advised her that he was awaiting the results of the blood tests that he had
ordered because of his concern that Mr. Stewart was non-compliant and
increasingly volatile. As well, psychiatric nurse, Tess Kroeker, a member of Mr. Stewart’s
team who had regular daily contact with him, advised Dr. Grasswick of his
significant concerns about Mr. Stewart’s escalating and deteriorating
behaviour.

[55]        
Dr. Grasswick interviewed Mr. Stewart on September 29, 2004.
Before she did, she reviewed his active clinical file from his third admission,
and if they were available to her, she would have, as a matter of her standard
practice, reviewed Mr. Stewart’s files from his previous admissions. Dr. Grasswick
was aware that the anti-psychotic medication benefitted Mr. Stewart and
was effective in reducing his hostility and irritability. She was also aware of
Mr. Stewart’s escalating grandiose, aggressive, and volatile behaviour and
of the psychiatric nursing staff’s concern that without treatment, Mr. Stewart
presented safety concerns to himself and to other patients and the staff. After
her meeting with him, she called Riverview Hospital and learned that the
results of his blood work meant that Mr. Stewart was not taking his
medication.

[56]        
During the interview, Dr. Grasswick found Mr. Stewart to be
hostile and intense. He provided a rambling description of his visions. He had
no insight into his condition. He told Dr. Grasswick that he would not
take his medication when he was released upon completion of his sentence. Dr. Grasswick
was of the opinion that Mr. Stewart suffered from paranoid schizophrenia,
and she made a differential diagnosis of schizoaffective disorder, bipolar
type.

[57]        
Dr. Grasswick was concerned about Mr. Stewart’s approaching
warrant expiry date. Given his past history of violence, his past and current
non-compliance with treatment including medication, his statement that he would
not take medication upon release, and his deteriorating condition due to his
non-compliance, Dr. Grasswick determined that Mr. Stewart was at risk
to commit further violent offences. She exercised her clinical judgment and
certified Mr. Stewart. On the certification document, Dr. Grasswick
provided the following summary of the basis for her certification:

Mr. Stewart has been non-compliant
with his antipsychotic medication (Olanzapine level <25). There has been a
gradual decline in his mental state over the past few weeks. He presents with
grandiose beliefs regarding his ability to have "visions" which he is
adamant come true + regarding his appeal, which he feels will help
"everyone". His affect quickly becomes hostile + irritable + he
believes he is not being listened to. He does not believe he has a mental
illness. He has no insight into his delusional beliefs. He is not suitable as a
voluntary patient.

[58]        
During cross-examination, Mr. Stewart said that in refusing to take
his medication, he was deliberately “thumbing his nose” at the doctors.

[59]        
After Dr. Grasswick certified Mr. Stewart, she followed the
protocol in place at the RTC and requested the on-call psychiatrist, who was Dr. Postnikoff,
to provide his own assessment. She communicated to him the information that she
received from the interview, her observations, a summary of Mr. Stewart’s
psychiatric history, and the basis upon which she determined that Mr. Stewart
should be certified.

[60]        
Dr. Postnikoff was very familiar with Mr. Stewart from his
prior dealings, including personal observations and interactions with Mr. Stewart.
He knew Mr. Stewart well. He also spoke with Dr. Healey as part of
his effort to complete his assessment of Mr. Stewart. Dr. Healey was,
by that time, very familiar with Mr. Stewart, including his ongoing medical
condition, pattern of behaviours, and plan of care.

[61]        
Although it is not clear whether Dr. Postnikoff reviewed Mr. Stewart’s
files from his previous admissions, he did review his active clinical file,
which included the reports of other psychiatrists and clinical staff members,
as part of his assessment of Mr. Stewart.

[62]        
A crisis at the RTC prevented Dr. Postnikoff from meeting with Mr. Stewart
before he issued the Certification. He was able to and did meet with Mr. Stewart
the next day, within the 48 hour time period in which Mr. Stewart had been
certified by Dr. Grasswick, as a matter of courtesy and to advise Mr. Stewart
of his decision. Mr. Stewart admitted that he had not been taking his
medication. Dr. Postnikoff did not glean any information from that
interview or from his observations to cause him to change his diagnosis or his opinion.
Dr. Postnikoff remained of the opinion that Mr. Stewart continued to
meet the requirements for certification.

[63]        
Dr. Grasswick also attended upon Mr. Stewart the following
day. One of her reasons was to ensure that Mr. Stewart was aware of his
rights, which he was. Nothing she gleaned from her meeting and observations of Mr. Stewart
caused her to change her opinion that he should remain certified.

[64]        
Independently of each other, both Doctors Grasswick and Postnikoff
diagnosed Mr. Stewart with a significant major mental health disorder. In
their opinion, he suffered from paranoid schizophrenia that if left untreated,
would pose a danger to Mr. Stewart’s own safety and the safety of others.

[65]        
Dr. Postnikoff’s prognosis was that intensive treatment was
required for several months and further, that Mr. Stewart must remain on
anti-psychotic medication for the remainder of his life. Dr. Postnikoff
issued the Certification because he had determined that Mr. Stewart would
not voluntarily comply with a prescribed treatment regime. In the Form 4 he
completed, Dr. Postnikoff wrote:

Deteriorating mental status over
past several weeks – he has been noncompliant [with] his prescribed
antipsychotic meds – Mr. Stewart is showing evidence of grandiose
delusions and is accompanied by a hostile irritable effect. [H]e lacks any
insight into the fact that he is mentally ill. He requires treatment within a
designated facility and it is no longer considered appropriate for him to
remain as a voluntary patient.

[66]        
I am satisfied that both Doctors Grasswick and Postnikoff genuinely held
the opinion, based on all of the information that was available to them, that Mr. Stewart
required immediate intensive psychiatric treatment, including treatment with
anti-psychotic drugs.

[67]        
Both Doctors Grasswick and Postnikoff acted in good faith throughout all
of their dealings with Mr. Stewart. This was the only time in Dr. Postnikoff’s
entire medical career where he has certified a patient under the MHA
without a prior interview. He believed he had sufficient reliable collateral
information to determine that Mr. Stewart met the criteria for
certification. I am satisfied that Dr. Postnikoff’s assessment of Mr. Stewart
on September 29, 2004 was independent, based on credible reliable information,
and as I have said, carried out in good faith and with reasonable care.

[68]        
I reject Mr. Stewart’s submission that Dr. Postnikoff was,
over time, seeking to find a way to certify him because of the circumstances
that led up to the stayed sexual assault charges. Those charges had nothing to
do with the Certification.

[69]        
When Mr. Stewart was certified by Doctors Grasswick and Postnikoff,
he suffered from a major mental disorder that required treatment. Mr. Stewart
met all of the criteria for certification. Treatment, primarily through anti-psychotic
medication, would not cure his illness but would minimize the breadth and
intensity of his delusions and his inappropriate and often anti-social
behaviour. Without treatment, Mr. Stewart would suffer further
deterioration of his mental condition and pose further significant risk to
himself and to others within the RTC and to the public at large on his release
following his warrant expiry date. Given his (now fully revealed) non-compliance
with treatment prior to his release, absent the Certification, Mr. Stewart
would be returned to Kent where he would be at significant risk of physical
injury or death as he pursued his obsession to circulate the Bulletin which
contained information about the stayed sexual assault charges. Patients are
only permitted to stay at the RTC if they are compliant with treatment or certified
in order that treatment may be provided on an involuntary basis.

[70]        
Dr. Postnikoff had no further involvement with Mr. Stewart
after the Certification was issued. Future treatment, including the prospect of
decertification, was to be determined by Mr. Stewart’s treating
psychiatrist, Dr. Hunter.

[71]        
Dr. Hunter met with Mr. Stewart at least twice, following his
return to the RTC, in the first week of October 2004. He determined that the
certifications made by Doctors Grasswick and Postnikoff were appropriate and
that Mr. Stewart should not be decertified. Dr. Hunter was greatly
concerned about Mr. Stewart’s mental illness. He determined that Mr. Stewart
should be admitted to a psychiatric hospital following his warrant expiry date for
treatment because otherwise Mr. Stewart would not only be unable to
assimilate and function in the community on his release, he would also pose a
risk to himself and to public safety.

[72]        
Mr. Stewart’s mobility within the RTC was restricted after the
Certification. For a short time, he was not able to stray and mingle with other
inmates. He was, however, able to interact with other inmates in his particular
unit. By October 2, he had access to a computer to work on his appeal. By
October 4, he was participating in recreational activities. Thus, by October 4,
the only major change to Mr. Stewart’s pre-Certification routine was that
he was being medicated without his direct consent. Mr. Stewart admitted in
his evidence that even his restricted mobility at the RTC allowed him far
greater freedoms than he had while in segregation at Kent.

[73]        
Mr. Stewart was unhappy with both certifications. Mr. Stewart was
aware of his rights under the MHA and he was reminded of them again by other
staff at the RTC shortly after the Certification (it was not Dr. Postnikoff’s
role to do so). He pursued a review before a review panel (“Review Panel”)
pursuant to ss. 24.3 and 25 of the MHA. By the time he made his presentation
before the Review Panel on October 18, 2004, his symptoms and presenting
behaviour had improved because of the treatment he was receiving as a result of
the certifications issued by Doctors Grasswick and Postnikoff.

[74]        
The Review Panel ultimately determined that Mr. Stewart should be
decertified. The three members of the Review Panel did not take issue with the
diagnosis of paranoid schizophrenia. Their concern was the extent of the
impairment caused by Mr. Stewart’s mental illness. In its decision, the
Review Panel noted that there was no evidence that Mr. Stewart “is
currently seriously impaired by his delusional thinking.” The Review Panel was
not sure, from the evidence in front of it, that Mr. Stewart had ever been
seriously impaired as a result of his delusions, and noted that he had not “verbally
challenged” anyone “in the context of his delusional thinking […] other than
his treating psychiatrics.” The medical evidence in front of the panel was
given by Dr. Hunter. Based on the evidence in front of it, which included Mr. Stewart’s
presenting condition after taking his medication and adhering to his treatment
regime since September 29, the Review Panel determined that the RTC had not
proven that Mr. Stewart’s condition met all of the criteria under the MHA
to justify Mr. Stewart’s continued certification. The Review Panel
understood that Mr. Stewart would not take his medication on his release.
Yet it decided in favour of his release because it did not have, it said,
“clear and cogent evidence that any deterioration in his mental condition that
might follow would likely be both substantial and imminent.” “In closing,” it wrote,
“whilst we note that Mr. Stewart has a criminal history involving offences
of violence there is no evidence to suggest that mental illness played any part
in them.”

[75]        
Immediately after the Review Panel ruled in favor of his release into
the community, Mr. Stewart refused to take any further medication.

[76]        
When Mr. Stewart was released from custody, the Vancouver Police
Department (“VPD”) issued a public bulletin warning that Mr. Stewart is a
dangerous sexual offender. The City of Vancouver has, on behalf of the VPD,
since retracted that warning (“Public Warning”) and issued a written apology to
Mr. Stewart. The City of Vancouver has also paid Mr. Stewart in
settlement of his defamation suit because Mr. Stewart has never been
convicted of any sexual offence.

[77]        
After his release from custody on October 19, 2004, Mr. Stewart
engaged in further criminal activity. He was subsequently certified under the MHA
on three separate occasions between February and June 2007. He was diagnosed
with either schizophrenia or psychosis with schizophreniform symptoms and
delusions of grandeur.

[78]        
Neither Dr. Postnikoff nor any of the other psychiatrists and psychiatric
nurses who dealt with Mr. Stewart at the RTC had any involvement with any
aspect of the Public Warning. There is no factual foundation for Mr. Stewart’s
assertion that they were part of a plan to keep him incarcerated beyond his
warrant expiry date or to discredit him on his release because of his
involvement in the events that gave rise to the sexual assault charges.

B.       Causation and Damages

[79]        
Dealing first with causation, Mr. Stewart would have been certified
by Dr. Postnikoff on September 29, 2004 had he conducted a personal
interview or carried out the personal observation that Mr. Stewart alleges
should have been done. Further, if Dr. Postnikoff had waited until the
next day to meet with Mr. Stewart before issuing the Certification, he
would have certified him at that time.

[80]        
Dr. Hunter also met with Mr. Stewart at least two times before
the hearing before the Review Panel and determined that Mr. Stewart met
the criteria for certification. In view of Mr. Stewart’s steadfast refusal
to take his medication and his deteriorating condition, I am also satisfied
that absent the Certification, Dr. Hunter would have certified Mr. Stewart
when he saw him on October 4 and then sought a second certification within 48
hours from another psychiatrist that would have been issued. Consequently, Mr. Stewart
has not demonstrated that even if the Certification was invalid, that he
suffered any loss as a result.

[81]        
I now turn to the facts concerning his claim for damages. As I have noted,
Mr. Stewart has spent much of his adult life in correctional facilities.
He admits to significant and ongoing addiction to illicit drugs such as heroin
and cocaine for many years. I accept his evidence that he has, from time to
time, been able to refrain from drug use, but these have been relatively short
periods of time.

[82]        
As well, and again by his own admission, Mr. Stewart is currently
taking morphine on a regular basis for pain. Mr. Stewart is presently
receiving disability assistance for his medical disabilities for his back pain.
He also suffers from HIV and AIDS. His drug use, consumption of morphine, and AIDS
are not connected with or caused by the Certification.

[83]        
Mr. Stewart completed his high school education while in federal
custody. Evidence concerning Mr. Stewart’s employment history was vague. He
said that many years ago he worked for a black cod fishing boat in Prince
Rupert and with his father who had the license to drive trucks for Canada Post
in a rural community in British Columbia. Following his release from the RTC in
2009, Mr. Stewart worked a few days to a week as a labourer renovating a
boxing ring at a local East-side hotel. He was paid close to $300 in cash. He
moved to Burnaby and worked for approximately one month at a local bowling
alley assisting one of the mechanics and as a short order cook, and then for a
few months at a construction site. He left that job when, by his own admission,
he began to re-use illicit drugs. He committed a bank robbery to sustain his
drug habit. He was arrested for that offence in August 2005. He has been in and
out of correctional facilities ever since for criminal offences that he has
committed since his release by the Review Panel. By his own account, Mr. Stewart
has spent a total of two years in correctional facilities since his release by
the Review Panel and was in a rehabilitation facility for approximately six
weeks. As I noted in the previous section, he was certified on three separate
occasions in 2006 and 2007. Apart from the work at the hotel, he has not
provided any evidence concerning past earnings nor the amount he is currently
receiving for disability benefits.

C. The Limitation Defence

[84]        
This action was commenced on December 8, 2006, after the expiry of the
limitation date. Mr. Stewart was aware of his right to bring a claim
against Dr. Postnikoff when the Certification was issued. He admitted that
he knew that he had two years in which to bring his action. He advised Dr. Grasswick
that he intended to bring legal action against her when she certified him on
September 29, 2004. He considered suing Dr. Postnikoff as early as September
30, 2004.

[85]        
To excuse his delay in commencing this action after the expiry of the
limitation date, Mr. Stewart gave evidence that he was wholly engaged in
pursuing his sentence appeal and in his efforts at Kent and Mission to clear
his name from what he perceived to be the anathema caused by the sexual abuse
charges referred to in his corrections file maintained by CSC. He was
frustrated because CSC would not remove any references to the stayed charges.
His parole officer, Ms. Lennox, confirmed that it is CSC policy to include
all charges, including stayed charges, in an inmate’s file because they help
inform the CSC’s ongoing assessment of the likelihood of risk that an inmate
will reoffend on release from custody.

[86]        
Mr. Stewart tried, unsuccessfully, to bring an action in the
Federal Court. In the spring of 2004, the Federal Court registry advised him
that it would not accept his documents for filing. I do not accept Mr. Stewart’s
evidence that he mistakenly thought that his lawsuit against Dr. Postnikoff
must be brought in the Federal Court. The documents that he tried to file with
the Federal Court do not disclose any claims against Dr. Postnikoff.
Instead, they concern the conduct of the CSC surrounding his sentence appeal,
its refusal to remove the stayed charges from his records, and the delivery of
his message about an impending nuclear holocaust.

[87]        
Mr. Stewart remained aware since the date of the Certification that
he had two years in which to sue Dr. Postnikoff. He regarded delivery of
his message to be of pre-eminent importance. He viewed his claim against Dr. Postnikoff
to rank lower in priority to delivery of the message, expunging his CSC
records, and his sentence appeal.

DETERMINATION

A. Liability

[88]        
I will first deal with Mr. Stewart’s claim that the Certification
was invalid and that Dr. Postnikoff was negligent in failing to meet with
him before issuing it.

[89]        
The purpose of the MHA is to provide for the treatment of
mentally ill persons who are in need of protection and care in a psychiatric
facility: McCorkell v. Riverview Hospital (Director), [1993] B.C.J. No. 1518
(S.C.) at para. 51. In that case, at para. 63, Donald J. (as he then
was) highlighted the protective nature of mental health legislation and
distinguished it from the criminal law:

It is necessary at this point to
repeat what I said earlier concerning the use of criminal cases to decide a
mental health matter: the objects and purposes of criminal law and mental
health legislation are so different that cases in one area will be of little
guidance in the other. A protective statute and a penal statute operate in
dramatically dissimilar contexts. Strict and narrow criteria for the detention
of persons in the criminal law context reflect our society’s notions of
fundamental justice for an accused person and protection of the public is a
foremost consideration. But in the field of mental health, the same criteria
would defeat the purpose of the legislation which is to help seriously mentally
ill people in need of protection.

[90]        
He also cited with approval at para. 51 the following remarks of
McQuaid J. in Reference Re Procedures and the Mental Health Act (1984),
5 D.L.R. (4th) 577 (P.E.I. S.C.) at 589 as applicable to the legislation in
this province:

The thrust of the Mental
Health Act, including its predecessors, has been the safety, support and
succor 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….

[91]        
A “person with a mental disorder” is defined in s. 1 of the MHA
to mean “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.”

[92]        
The MHA does not make an in-person interview or personal
observation or assessment a pre-condition to certification. Whether it is the
first or second certification under the Act, the physician must complete
a certificate that contains, in summary form, the date or dates on which they
“examined” the patient, the diagnosis, and the nature of treatment required.
There is no definition of “examined” in the statute.

[93]        
Section 22(3) sets out the requirements for certification. Four criteria
must be met in order to certify an individual:

(a)      the person has a mental disorder;

(b)      the person requires treatment in or through a
designated facility;

(c)      treatment is necessary to prevent
substantial mental or physical deterioration or for the protection of that person
or of others; and

(d)      the person cannot suitably be admitted as a
voluntary patient.

[94]        
The MHA provides a mechanism for an initial certification for up
to 48 hours and then a second certification to hold a person for treatment in a
designated facility for up to 30 days:

Involuntary admissions

22 (1) The director of a designated facility may admit
a person to the designated facility and detain the person for up to 48 hours
for examination and treatment on receiving one medical certificate respecting
the person completed by a physician in accordance with subsections (3) and (4).

(2) On receipt by the director of a second medical
certificate completed by another physician in accordance with subsections
(3) and (5) respecting the patient admitted under subsection (1), the
detention and treatment of that patient may be continued beyond the 48 hour
period referred to in subsection (1).

(3) Each medical certificate under this section must be
completed by a physician who has examined the person to be admitted, or the
patient admitted, under subsection (1) and must set out

(a) a statement by the physician
that the physician

(i) has examined the person or
patient on the date or dates set out, and

(ii) is of the opinion that the
person or patient is a person with a mental disorder,

(b) the reasons in summary form
for the opinion, and

(c) a statement, separate from
that under paragraph (a), by the physician that the physician is of the opinion
that the person to be admitted, or the patient admitted, under subsection (1)

(i) requires treatment in or
through a designated facility,

(ii) requires care, supervision
and control in or through a designated facility to prevent the person’s or
patient’s substantial mental or physical deterioration or for the protection of
the person or patient or the protection of others, and

(iii) cannot suitably be
admitted as a voluntary patient.

…

(6) A medical certificate completed under subsection (1) in
accordance with subsections (3) and (4) is authority for anyone to apprehend
the person to be admitted, and for the transportation, admission and detention
for treatment of that person in or through a designated facility.

(7) A patient admitted under subsection (1) to an observation
unit must be transferred to a Provincial mental health facility or psychiatric
unit within the prescribed period after a second medical certificate is
received under subsection (2) by the director of the observation unit unless
the patient is

(a) discharged, or

(b) released on leave or
transferred to an approved home under section 37 or 38.

[Emphasis
added]

[95]        
Sections 23 and 24 provide that a patient such as Mr. Stewart may
be kept in the facility for longer than the 48 hour period mandated by the
initial certification. A second certification may result in the patient being
detained for one month, at which time he or she must be released, unless the
certification is renewed for further, successive periods.

[96]        
The evidence of the standard of care expert, Dr. O’Shaughnessy,
which I accept without reservation, is that unlike some other provinces, the
mental health care regime in British Columbia focuses first on the medical
treatment of the patient to ensure their safety and well-being and of the
public as well. According to Dr. O’Shaughnessy, the standard of practice
in British Columbia allows for certifications under the MHA without an
interview or personal observation. While in-person observation is always
desirable, ultimately, it is left up to the certifying doctor to determine the
nature and extent of the “examination” that is required in the circumstances of
each case. There are times, he opined, when personal observation is not
possible or even where it is, it is meaningless in terms of the diagnosis and
ultimate determination of required ongoing treatment. It is therefore critical
for the certifying doctor to have evaluated all pertinent reliable information
and records showing the person’s medical presentation and history, symptoms, behaviours,
and compliance with treatment. It is both necessary and appropriate for the
doctor considering certification under the MHA to rely upon the reports
and assessments of other qualified medical professionals.

[97]        
I also accept the following opinion expressed by Dr. O’Shaughnessy in
his viva voce testimony and in his reports that Dr. Postnikoff met
the standard of care in this province when he issued the Certification:

[Dr. Postnikoff] clearly had good knowledge of Mr. Stewart’s
past history, symptoms, and behaviours. He was aware that Mr. Stewart had
fixed delusional systems and that he was argumentative and at times hostile and
irritable when these were questioned or challenged. He was well aware of Mr. Stewart’s
past history of violent behavior. He was aware that Mr. Stewart had no
insight into his mental disorder and did not consider himself to have a mental
disorder at all let alone one that required treatment. He was also aware that Mr. Stewart
was not taking the medications as prescribed and that this likely was a
significant factor in his escalation of agitation and irritability in the
preceding weeks. Dr. Postnikoff concluded that he had a serious mental
disorder (Schizophrenia) and that he required care and attention in a hospital
which is certainly appropriate given Mr. Stewart’s behavior, his
non-compliance with medications, and his absence of acceptance that he had a
serious mental disorder. Dr. Postnikoff also concluded he posed a
significant risk to self or others and again I think this is a judgment call
that is supported by the interpretation of the terms of the Act that doctors in
British Columbia utilize.

In summary, Dr. Postnikoff’s behaviour was well within
the standard of care of psychiatrists practising within British Columbia and in
particular those working within a forensic hospital setting who have experience
assessing and treating violent offenders. While Mr. Stewart’s behaviour
was by no means evidence of a severe risk, e.g. severe assault and/or death, I
certainly think there was significant indication to determine that his behaviour
in general met the threshold criteria of risk of harm as described in the
McCorkell decision. In all cases where there is some question as to whether or
not the risk is severe or imminent, psychiatrists will more often than not err
on the side of caution and go on to utilize civil commitment and the subsequent
treatment with antipsychotic medications to reduce that risk. I consider Dr. Postnikoff’s
behaviour to be prudent and well within the standard of care of psychiatrists
practising in British Columbia.

In my opinion, based on his previous examinations and
knowledge of Mr. Stewart coupled with Dr. Grasswick’s more recent
information he would have had sufficient collateral information to allow him to
make an independent judgment that Mr. Stewart had deteriorated and was at
risk of harming self and others and would have met the criteria for civil commitment
under the [MHA].

…I think he did have sufficient information based on his
past experience and the more updated evaluation by Dr. Grasswick and I do
not think he was below the standard of care in filling out the civil commitment
forms notwithstanding the fact that he did not have a personal examination on
that particular day ….

[Emphasis
added]

[98]        
 Dr. Hyrman, the psychiatrist that Mr. Stewart has seen from
time to time since his release from the RTC, agreed when giving his evidence
that there may be times when an in-person interview or observation is not
possible prior to certification.

[99]        
Dr. Postnikoff appropriately examined all available reliable
information concerning Mr. Stewart before issuing the Certification. He
spoke with Dr. Grasswick about Mr. Stewart’s presenting and symptoms,
deteriorating behaviours, and his immediate past history. He was made aware of Mr. Stewart’s
non-compliance with prescribed medical treatment. He also spoke with Dr. Healey
who was familiar with Mr. Stewart’s history at the facility, including his
medical history.

[100]    
I agree with Dr. Postnikoff’s submission that Mr. Stewart “had
already been under the observation of the treatment team on multiple occasions
and for extended time periods” since his first admission to the RTC, so that Dr. Postnikoff
had “ample reliable collateral evidence available” that demonstrated Mr. Stewart
met the requirements for certification under the MHA. I am satisfied
that through his prior involvement with Mr. Stewart and his participation
at regular meetings and in informal discussions with medical staff, Dr. Postnikoff
was fully aware of Mr. Stewart’s ongoing condition and symptoms throughout
his admissions at the RTC. When Dr. Postnikoff issued the Certification,
he had access to and reviewed reliable collateral evidence from Doctors Healey
and Grasswick as well as the trained psychiatric nursing staff. I also agree
with the Dr. Postnikoff’s summary of the nature of that collateral
evidence:

The information available to Dr. Postnikoff,
which included knowledge derived from his previous interviews of the plaintiff,
indicated that the plaintiff: (1) was suffering from a major mental disorder,
(2) required treatment in a designated facility, (3) suffered from a condition
that would deteriorate if he did not receive treatment and would present a risk
to himself and others, and (4) was non-compliant with his medication.

[101]     I reject Mr. Stewart’s
submission that Dr. Postnikoff simply issued the Certification “as a
rubber stamp” (done either negligently or recklessly) or as part of a plan to
keep him in custody past his warrant expiry date. As I have pointed out, Dr. Postnikoff
was appropriately familiar with Mr. Stewart’s history and underlying
problems. In conducting his examination of Mr. Stewart on September 29,
2004, Dr. Postnikoff carried out his own independent assessment just as he
did in the previous year when he came to a conclusion that differed with Dr. Au,
when he declined to issue the second certification. Throughout his dealings
with Mr. Stewart, Dr. Postnikoff acted as a careful and considered
physician, exercising his independent judgment. Dr. Postnikoff had
determined from his previous examination of Mr. Stewart (that included an interview)
that Mr. Stewart’s condition was such that if he became non-compliant, he
should be certified. The results of Mr. Stewart’s blood tests provided
objective evidence to support Dr. Postnikoff’s decision to issue the
Certification. The results of the blood work established that Mr. Stewart was
not taking his anti-psychotic medication in spite of his prior assurances that
he would do so. There was also credible, reliable evidence from the medical
staff that Mr. Stewart’s condition was not improving but instead deteriorating.
Thus, Dr. Postnikoff had ample evidence to demonstrate that Mr. Stewart
met the criteria for certification. Certification was necessary to protect the
safety and well-being of Mr. Stewart and of others. Dr. Postnikoff
acted in good faith, with reasonable care, and in compliance with standard
practise when he issued the Certification.

[102]    
Mr. Stewart’s position that Dr. Postnikoff was required to
interview him personally as a condition to the Certification is also inconsistent
with the case law. The leading case, Mullins v. Levy, 2009 BCCA 6, leave
to appeal ref’d, [2009] S.C.C.A. No. 106, supports Dr. Postnikoff’s
position in this case. Although Mullins dealt with a prior version of
the MHA, the only significant difference is that under the old
legislation, two certificates were required to detain a person for 48 hours as
opposed to the current statute that requires only one. Otherwise, the Court of
Appeal’s analysis of the definition of examination and its determination that
it enjoys a broad meaning is apposite. The legislature has refrained from
requiring a personal interview or personal observation of a patient as a
prerequisite to certification.

[103]    
In writing for the Court of Appeal, Kirkpatrick J.A. said that an
examination does not necessarily require a personal interview or observation.
It should be conducted if possible and necessary. What is required, however, is
for the certifying doctor to have “gathered sufficiently reliable information
to make the diagnosis that [the patient] is mentally disordered…”: paras. 52,
105-110. Context is crucial. In this case, unlike a large community hospital
where an unknown person presents in Emergency with no known prior history, Mr. Stewart’s
behavioural, psychiatric, and other medical history was well known to all of
the medical staff.

[104]    
In Mullins, as in Mr. Stewart’s case, the doctor determined
from sufficiently reliable information that the patient had no insight, his
behaviour was escalating, and was at significant risk of harming himself.

[105]    
The following extract from Mullins is, in my opinion, worth
setting out in full because it demonstrates the force of the Court of Appeal’s
remarks and that debate on the issue is now closed:

[105]    Definitions provided in medical dictionaries indicate
that “examination” is a general term that refers to an investigation undertaken by a
physician, and that the term is usually qualified by reference to a specific type of
“examination”. For instance, in Stedman’s Medical Dictionary, “examination” is
defined as “[a]ny investigation or inspection made for the purpose of diagnosis;
usually qualified by the method used” (Maureen Barlow Pugh et al., eds., Stedman’s
Medical Dictionary, 27th ed. (Baltimore: Lippincott Williams & Wilkins, 2000)). Dorland’s
Illustrated Medical Dictionary provides a definition that suggests the term is a general one.
“Examination” is
defined as an:

Inspection, palpation, auscultation, percussion or other
means of investigation especially for diagnosing disease, qualified according
to method employed as physical examination, radiologic examination, diagnostic
imaging examination, or cystoscopic examination.

(Douglas M. Anderson, ed., Dorland’s
Illustrated Medical Dictionary, 28th ed. (Philadelphia: W.B. Saunders
Company, 1994))

Definitions
of a similar nature can be found in other relevant sources, although they are
not strictly medical in nature. For instance, The Dictionary of Canadian Law
defines “medical examination” as follows: “Includes a mental examination, a
physical examination and medical assessment of records respecting a person” (The
Dictionary of Canadian Law, 3d. ed., s.v. “medical examination”). In The
Oxford English Dictionary, the definition of “examination” includes,
“[t]he action of investigating the nature, qualities, or condition of any
object by inspection or experiment; minute inspection, scrutiny”, and “[t]he
action or process of searching or inquiring into (facts, opinions, statements,
etc.); investigation, scrutiny” (The Oxford English Dictionary,
2d. ed. s.v. “examination”).

[106]
The purpose of the Act was found to be manifestly plain in McCorkell
v. Riverview Hospital, where Donald J. (as he then was) stated it to be
“the treatment of the mentally disordered who need protection and
care in a provincial psychiatric hospital.” Having regard to the
views of the physicians, the purpose of the Act, and the
interpretation of the word in its ordinary usage in the medical context, in
my opinion the term “examination” must be given a broad
interpretation so as to be applicable in the myriad of
circumstances that confront physicians called upon to make the
serious decision to involuntarily commit persons to a psychiatric facility.
“Examination”, in this context, must mean observing the person,
reviewing the patient’s chart (if there is one), reviewing the
available history and collateral information, and where possible
(in the sense that the person complies) and necessary (in the
sense that the information to be gained is not available from other sources)
conducting a personal interview with the person to be admitted.

[107]
No one suggests that the physician’s examination be treated other than with utmost
seriousness. The decision to certify obviously has profound implications for the
liberty of persons who may be held against their will for significant periods
of time.

[108] However,
the physician’s decision is ultimately a question of medical judgment. Once the
physician has gathered sufficiently reliable information to make the diagnosis
that the person is mentally disordered and in need of treatment and protection,
then a court ought not lightly interfere with that decision provided it is made
in good faith and with reasonable care.

[109] It is perhaps in recognition of the multiplicity
of situations that may arise in the mental health context, and the very nature
of the way mentally ill persons present that lead the legislature not to define
the term “examination” in the Act. What is plain, is that there must be
sufficient reliable information to justify the denial of a person’s liberty.

[110]    In my opinion, the trial judge erred in law in
narrowly construing the word “examination” as it is used in the Act by
necessitating a personal interview of the person to be admitted in all cases.

[Emphasis added]

[106]     Relying on
Mullins and Dr. O’Shaughnessy’ s explanation that standard practise
permits certification without a personal interview or observation, I conclude
that there is no basis upon which to find, as Mr. Stewart urges me to,
that the standard of practice in British Columbia is, itself, inappropriate and
on its face, negligent.

[107]     I agree
with Dr. O’Shaughnessy that the purpose of certification is to protect people
whose mental state has deteriorated to such a point that left untreated they would
pose a risk to their own safety and well-being and to others. I also agree with
his opinion that Doctors Grasswick and Postnikoff certified Mr. Stewart in
order to protect him through treatment, and in doing so to protect others,
including the public, upon his release into the community. I am satisfied that Mr. Stewart
met all of the criteria for certification and that the Certification was valid
under the MHA.

[108]     Even if
the Certification was not valid, Dr. Postnikoff is shielded from liability
because he acted in good faith and with reasonable care. Section 16 of the MHA
provides immunity for a physician who has acted in good faith and with
reasonable care for, amongst other things, signing a medical certificate or
making a report or requesting that a person be admitted to or detained in a
designated mental health facility: Franks v. Ruddiman, 2004 BCSC 632 at paras. 26-27.

[109]     Thus, in
summary, I have determined that Dr. Postnikoff carried out an appropriate
examination of Mr. Stewart, in accordance with the MHA, on September 29,
2009. He acted in good faith, with reasonable care, and in accordance with
standard practice when examining Mr. Stewart and issuing the
Certification. Dr. Postnikoff had sufficient and reliable information from
his knowledge of Mr. Stewart, the records he reviewed, and the information
he obtained from collaterals, to certify Mr. Stewart on September 29,
2009. Accordingly, Mr. Stewart’s claim in respect of the Certification
itself must fail.

[110]     Mr. Stewart’s
assertion that Dr. Postnikoff inappropriately diagnosed him with paranoid
schizophrenia must also fail. The diagnosis was also made by Doctors Au,
Grasswick, and Hunter, who treated and observed Mr. Stewart during his
three admissions at the RTC. The diagnosis was concurred in by Dr. O’Shaughnessy.
Mr. Stewart has not proven that Dr. Postnikoff’s diagnosis was in
error or the result of any negligence on his part.

[111]     In a case
such as this, where Mr. Stewart asks the Court to declare that the
diagnosis of paranoid schizophrenia made by those doctors was wrong, it is
important to keep in mind the very apt caution expressed by Kirkpatrick J.A. in
Mullins. At para. 91, she warned against judges making their own
diagnosis. Findings should be based on the evidence of the doctors, and in this
case, the psychiatrists:

[91]      It is important to note
here the role of the Court with respect to making a medical diagnosis. As
succinctly and correctly stated by the trial judge at para. 123, “[t]he
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.”

[112]     The only
dissenter from the diagnosis was Dr. Hyrman. In weighing his testimony
against the evidence from the other psychiatrists, I do not find any basis to
suggest that his testimony demonstrates that the diagnosis of paranoid schizophrenia
was incorrect. Although Dr. Hyrman, who has treated Mr. Stewart on an
intermittent basis, disagreed with the diagnosis, he nevertheless diagnosed Mr. Stewart
with a grande delusion mental health disorder. Dr. Hyrman acknowledged
that there are many similarities between the features and presenting symptoms
of that disorder and schizophrenia (including the paranoid type). A mental
illness involving grande delusions and one involving paranoid schizophrenia are
both major mental disorders. His personal practice – to never diagnose his
patients with schizophrenia because he views it to be a clinical syndrome
rather than a disease – provides significant insight into his diagnosis of Mr. Stewart.

[113]     I am also
not satisfied that Dr. Hyrman, through no fault of his own, had access to
all of Mr. Stewart’s relevant medical and institutional records that were
available to Doctors Postnikoff, Grasswick, Hunter, Au, and O’Shaughnessy.

[114]     For these
reasons, I do not find that Dr. Hyrman’s evidence detracts from the
diagnosis made by the other psychiatrists who diagnosed paranoid schizophrenia,
and in the circumstances, I prefer and accept their diagnoses and opinions concerning
Mr. Stewart’s mental illness.

[115]    
I also wish to note that Dr. Hyrman refused to provide Mr. Stewart
with an expert report for trial. His testimony was provided as Mr. Stewart’s
treating physician. In addition to remarking on the similarities between the
symptoms of grande delusions and schizophrenia, he opined that Dr. Postnikoff
was not negligent. In a letter dated August 6, 2009, which he confirmed in his
evidence to reflect his opinion, he wrote:

Finally, while we may disagree on
the diagnosis, I do not find the doctors you direct your action against in any
way negligent or deviating from customary practice.

[116]     The
remarks made by the Review Panel in its handwritten decision to decertify Mr. Stewart
do not prove that the diagnosis of paranoid schizophrenia is incorrect. No member
of the Review Panel was called to give evidence. The Review Panel’s decision
was made at a time when Mr. Stewart had been treatment compliant for
approximately 18 days so that his presenting condition at the hearing would
have been qualitatively different than his deteriorating condition and
escalating symptoms extant when the Certification occurred. As well, the Review
Panel did not take issue with the diagnosis.

[117]     There are
four remaining claims that were raised by Mr. Stewart during the trial.

[118]     The first
is Mr. Stewart’s claim that he was not provided with his rights under the MHA
immediately following Certification or shortly thereafter. Even though Mr. Stewart
appeared to abandon this part of his claim against Dr. Postnikoff in oral argument,
I will deal with the assertion in any event. There is no factual basis to support
this claim. It was not Dr. Postnikoff’s role at the RTC to advise Mr. Stewart
of his rights; that task was handled by other staff at the RTC. Importantly, Mr. Stewart
was well aware of his rights under the MHA at the time of the
Certification. He was also advised of his rights under the MHA shortly
after Certification. He was aware of them when Dr. Grasswick came to see
him the next day, on September 30. Mr. Stewart immediately acted upon his
rights. He secured advice from a mental health advocate and obtained legal
representation at the hearing of the review he pursued before the Review Panel.
Mr. Stewart’s application was heard in a timely fashion and was ultimately
successful. Mr. Stewart was decertified and released from custodial care.
He did not incur any expense in pursuing the review. Consequently, even if
there is any potential merit to his claim, I find that Mr. Stewart did not
suffer any loss as a result.

[119]     The second
is Mr. Stewart’s claim that the RTC and Dr. Postnikoff administered
treatment without his informed consent. This claim also lacks any factual
foundation. Mr. Stewart sought admission to the RTC. He wished to remain a
patient there. To do so, he agreed to receive treatment at the facility. He did
not want to return to the maximum security facility where he had been
incarcerated or to any other correctional facility before his warrant expiry
date. Dr. Postnikoff was not involved in administering any treatment to Mr. Stewart.
The Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C.
1996, c. 181, asserted by Mr. Stewart to support his argument that
his agreement to each and every form of treatment was necessary, has no
application to the facts of this case. Finally, all treatment provided to Mr. Stewart
were either accepted by him voluntarily, with his informed consent, or
otherwise provided to him lawfully pursuant to valid certifications under the MHA.

[120]     The third is
Mr. Stewart’s claim that Dr. Postnikoff interfered with his sentence
appeal to the Supreme Court of Canada. This claim must fail as well. While
other medical professionals and correction officials required Mr. Stewart
to stop work on his appeal book because his inordinate obsession with it was
causing his mental condition to significantly deteriorate, Dr. Postnikoff
had nothing to do with Mr. Stewart’s sentence appeal. Dr. Postnikoff
did not thwart or prevent Mr. Stewart from pursuing his appeal. Further, Mr. Stewart’s
application for leave to appeal did make its way to the Court in any event.
Although the Court would not grant Mr. Stewart’s extension application, resulting
in his application for leave to appeal being dismissed, the Court made it clear
in its reasons that his appeal was without merit, [2006] S.C.C.A. No. 88.
Even if it could be said that Dr. Postnikoff’s actions delayed the appeal
in some inadvertent manner, it would have been an entirely unintended result
and did not cause Mr. Stewart any loss for which damages could be awarded.

[121]     Mr. Stewart’s
remaining claim is that together with correctional authorities and other
medical professionals, Dr. Postnikoff stopped him from circulating the
Bulletin to other inmates. There is also no basis for this claim. Dr. Postnikoff
had nothing to do with any of the efforts that were made to stop circulation of
the Bulletin. In addition, the evidence makes it clear that the efforts of CSC
officials and other medical professionals to do so were done in good faith,
stemming from their legitimate concern that Mr. Stewart’s life would be in
danger in prison if he disclosed the circumstances surrounding his sexual
relations with an underage female to the prison population.

[122]     Accordingly,
I have determined that all of Mr. Stewart’s claim against Dr. Postnikoff
must fail on an analysis of the substantive merits of each.

B. Causation and Damages

[123]     I have
approached this section of my reasons on the basis that Mr. Stewart has
proven that the Certification was invalid and that Dr. Postnikoff failed
to adhere to the standard of care.

[124]     Mr. Stewart
cannot demonstrate causation. If Dr. Postnikoff had not issued the
Certification, then on his return to the RTC early in the first week of October
2004, Dr. Hunter would have certified Mr. Stewart upon learning of
his history in absence, the results of the blood test, and of Mr. Stewart’s
unwavering intention not to take his medication, which was by then, fully
revealed. I am satisfied that Dr. Hunter would have taken all steps
necessary to ensure that Mr. Stewart remained certified until his symptoms
were appropriately ameliorated with treatment, including anti-psychotic drugs.
A second certification would also have been issued. As a result, even if the
Certification was invalid. Mr. Stewart would have remained in custody at
the RTC.

[125]     Assuming
causation could be established, Mr. Stewart could not prove a loss beyond
nominal damages. Damages for false imprisonment are designed to compensate a
plaintiff for deprivation of liberty, public humiliation, loss of reputation, and
mental anguish: Hanisch v. Canada, 2004 BCCA 539 at para. 60. According
to Hanisch, the measure of damages reflects the nature of the event, the
character of the person wronged, and the community where the events occurred: para. 60.
Mitigating factors such as the benefits conferred on Mr. Stewart during
his involuntary admission resulting from the Certification and the good faith
and reasonable care taken on behalf of Dr. Postnikoff will be taken into
account in the assessment of damages: Ketchum v. Hislop, [1984] B.C.J. No. 3185
at paras. 26-28 (S.C.); Burke v. Efstathianos, [1961] M.J. No. 42
at para. 63 (C.A.).

[126]     Even if Dr. Postnikoff
were at fault for issuing the Certification without first meeting with or
personally observing Mr. Stewart, I would not award Mr. Stewart
anything beyond nominal non-pecuniary damages of $1,000. In addition to
considering the range of awards in Park v. British Columbia (Ministry of
Public Safety and Solicitor General, 2012 BCPC 138; Kalsi v. Greater
Vancouver Associate Stores Ltd., 2009 BCSC 287; Abbott v. Canada,
[1993] F.C.J. No. 673 at paras. 160-63 (T.D.); Lebel v. Roe,
[1994] Y.J. No. 62 (SC), and Latimer at paras. 22-24, my
assessment is based on the following four reasons.

[127]     First, as
I have noted, I am satisfied that Mr. Stewart would have been held past
his warrant expiry date even in the absence of the Certification. Mr. Stewart
was clearly non-compliant with his treatment, deteriorating, belligerent and
agitated (with the potential to become violent on a moment’s notice), and was at
risk to himself and to others before he was certified by Dr. Grasswick. Dr. Postnikoff’s
diagnosis and certification was concurred in by Mr. Stewart’s treating
psychiatrist, Dr. Hunter, shortly after his return to the RTC from his
conference. Given the ongoing deterioration in Mr. Stewart’s condition,
his volatility, and his refusal to comply with treatment when Dr. Hunter
met with Mr. Stewart in the first week of October 2004, Dr. Hunter would
have, in the absence of any existing valid certification, certified Mr. Stewart
under the MHA because at that time he met the criteria for certification.
A second opinion would have been requested and issued, so that Mr. Stewart
would have been held past his warrant expiry date in any event.

[128]     Second, Mr. Stewart
cannot prove that he suffered any loss caused by Dr. Postnikoff’s
diagnosis of paranoid schizophrenia. His evidence that he suffers from a “stigma”
as a result of having been diagnosed as a paranoid schizophrenic went no
further than a general statement to that effect and that it caused him some
mental distress.

[129]     Third, Mr. Stewart
was suffering from a pre-existing and symptomatic mental illness. Mr. Stewart
has not proven that he suffered any public humiliation, loss of reputation, or
mental anguish as a result of the Certification. He benefitted from the
treatment he received as an involuntary patient at the RTC following the
certifications. To the extent that he suffered a wrongful confinement that can
be construed as false imprisonment as a result of the Certification, it would
only have been a brief period of a few days until Dr. Hunter’s return to
the RTC. In addition, the beneficial effects of treatment to Mr. Stewart
from the Certification more than offset the deprivation of his liberty.

[130]     Fourth, Mr. Stewart
has failed to demonstrate that he suffered any past income loss as a result of
the Certification. His evidence concerning his past employment history was, at
best, extremely vague, and not supported by any other evidence. He has not
tendered any evidence to establish that there is a real and substantial
possibility that he will suffer loss of income as a result of the Certification,
which according to Perren v. Lalari, 2010 BCCA 140 at paras. 30-32,
is required. His prospects for future employment have not been affected by the
Certification. Instead, any impairment to his ability to be gainfully employed is
the result of his prior criminal activity, substance abuse, addiction, and
medical impairments, none of which, I find, are causally connected with the
Certification.

[131]     Overall,
apart from his claim that he should be awarded damages for being held at the RTC
beyond his warrant expiry date, the primary focus of Mr. Stewart’s claim
for damages was on three things: first, his inability to deliver his message, second,
publication of the Public Warning, and third, certain efforts initiated by the VPD,
following his release from RTC at the end of his sentence, for an order from
the Provincial Court, pursuant to s. 810 of the Criminal Code,
R.S.C. 1985, c. C-46, imposing certain conditions on him to ensure public
safety while he was living in the community.

[132]     There is
no basis for an award of aggravated or punitive damages.

C. The Limitation Defence

[133]     Mr. Stewart
argued quite strenuously that the operation of the limitation period in the Limitation
Act should be postponed or suspended. In medical malpractice actions, the
limitation period commences on the day the right to bring an action arose: Bera
v. Marr (1986), 27 D.L.R. (4th) 161 at 163-164 (B.C.C.A.). If that day is
the date of the Certification, then Mr. Stewart’s claim was time barred on
September 30, 2006. If the commencement of the limitation period is
considered to run on the date his damages crystalized, i.e., his release from
custody on October 19, 2004, then his claim expired on October 20, 2006.
In either case, this action was commenced after the limitation period had
expired.

[134]     Counsel
for Dr. Postnikoff quite correctly points out that the often used
postponement provisions in s. 6 of the Limitation Act do not apply
to false imprisonment. That tort falls within the purview of s. 3(2)(d), but
it is not one of the enumerated causes of action that is within the ambit of
s. 6. Section 7 concerns postponements and suspensions of the limitation
period for persons suffering from a disability, and does not exclude false
imprisonment.

[135]    
Turning first to postponement under s. 6, Mr. Stewart offers
several excuses in his effort to meet the conditions set out in it. He submits
that he was: (a) engaged in pursuing his sentence appeal; (b) in custody for
substantial periods; (c) diverted to the Federal Court; (d) without a lawyer,
did not understand the full extent of his claim and did not appreciate where to
sue until the Federal Court rejected his documents; and (e) focused on
delivering his message which he admits pre-empted all of his other efforts. He
conceded that he pursued his sentence appeal in order to “spread the message”.

[136]    
Section 6 of the Limitation Act stipulates a number of conditions
must be met in order to postpone the limitation period. Generally speaking,
they concern identity of the defendant and knowledge of sufficient facts that
would lead a reasonable person to appreciate that he or she had a cause of
action: Thomas v. Vancouver Coastal Health Authority, 2006 BCSC 422 at paras. 15-16
(citing Ounjian v. St. Paul’s Hospital, 2002 BCSC 104 at para. 21).
In Karsanjii Estate v. Roque (1990), 43 B.C.L.R. (2d) 234, Taylor J.A.,
for the majority, said at 263-264:

I have concluded that where, as here, the fact that injury
has been suffered – surgery which "backfired totally"- is known to
the prospective plaintiff, and where a reasonable person in his position would
have appreciated that this may reasonably have resulted from a breach of duty
on a part of a person whose identity is known to the prospective plaintiff, and
where the fact that it was so caused could reasonably be discovered by
obtaining advice available to the prospective plaintiff (even though the
assistance of a lawyer or other intermediary might be required in order to
obtain such advice), then the relevant "facts" should be regarded as
falling within his "means of knowledge for the purpose of s. 6(3)(i)
[s. 6(4) in Mr. Stewart’s case].

I say this because to hold that
time does not start to run in such circumstances until the prospective
plaintiff happens to receive expert advice confirming that the relevant breach
of duty is a possible explanation for the problem – let alone a probable or
likely explanation – would in my view unreasonably expose prospective
defendants to "stale" claims.

[137]    
Mr. Stewart’s personal circumstances are also a factor: s. 6(4)(b)
Limitation Act; Ounjian at paras. 20-22. In Novak v. Bond,
[1999] 1 S.C.R. 808, McLachlin C.J.C., for the majority, said that the proper
interpretation of the postponement provisions requires an analysis of the
plaintiff’s own particular circumstances. At para. 39, she wrote:

…The question posed by s. 6(4)(b)
therefore becomes: “in light of his or her own particular circumstances and
interests, at what point could the plaintiff reasonably have brought an
action?” The reasonable person would only consider that the plaintiff could not
have brought an action at the time the right to do so first arose if the
plaintiff’s own interests and circumstances were serious, significant, and
compelling. Purely tactical concerns have no place in this analysis.

[138]    
Mr. Stewart is not entitled to rely upon the postponement
provisions in s. 6. None of the reasons or excuses he has provided amount
to "serious, significant, and compelling circumstances" as described
in Novak. He was not under any mistake or misapprehension about his
right to bring the action and the amount of time in which he had to bring it. He
knew of Dr. Postnikoff’s identity at the time of Certification. He knew
that he had two years in which to bring his action. He also knew about his
cause of action because he thought about suing Dr. Postnikoff on September
30, 2004 and had threatened legal action against Dr. Grasswick on the same
day. I do not accept his evidence that he thought his claim against Dr. Postnikoff
should be brought in the Federal Court. The claim that he sought to file in
that court had nothing to do with his claim against Dr. Postnikoff. He was
also aware by spring 2004 that the Federal Court would not accept his
documents. He had ample time to file his documents in this Court well before
the limitation period expired. Instead, he chose to concentrate his efforts on
delivering his message and expunging the stayed charges from his CSC records to
the detriment of a timely filing of his claim in this Court.

[139]    
Mr. Stewart cannot rely upon the postponement provision in s.7(2),
which states that if at the time the right to bring action arises a
person is under a disability, the limitation period set by the statute is
postponed so long as that person is under a disability. Nor can he rely on the
suspension provisions, which are in s. 7(4). They provide that if after
the time has begun to run with respect to a limitation period, but before
the expiry of it, a person who has a cause of action comes under a disability,
the running of that time is suspended against that person so long as he or she
is under a disability. In either case, Mr. Stewart must prove that he was
disabled, which he has not done.

[140]    
Proof that a person meets the requirements for certification under the MHA
does not, in itself, mean that they are legally disabled: E.M.E. v.
I.A.W., 2003 BCSC 1878. None of the evidence, including the medical
evidence, establishes that Mr. Stewart was mentally incompetent or unable
to manage his own affairs. He has not established any of the factors considered
in Wirtanen v. British Columbia, [1994] B.C.J. No. 2439 at para. 20
(S.C.):

…I have considered the following factors in considering
whether Mrs. Wirtanen was "disabled" under the Limitation Act:

1.         Is the
plaintiff cognizant of the facts giving rise to the cause of action? For
example, is the plaintiff aware that there was a motor vehicle accident, that
she was injured and may be able to sue and collect money?

2.         Does
the plaintiff understand the nature and purpose of the proceedings, including
the respective roles of judge, jury and counsel?

3.         Does
the plaintiff comprehend the personal import of the proceedings? Is she able to
form a rational judgment about the effect of the action on her interests?
Specifically, she must be able to understand what costs mean and comprehend
enough of the information provided to her to appreciate the consequences of winning
and losing.

4.         Is the plaintiff able to comprehend
legal advice being given to her? Is she able to instruct counsel and make critical
decisions on counsel’s advice?

In Mr. Stewart’s case, the
answer to each of those questions is yes.

[141]    
Through his past dealings with the legal system, Mr. Stewart was
aware of his right to bring lawsuits for alleged civil wrongs well before the Certification.
I found him to have a certain innate intelligence that has assisted him to
navigate the court system, including this case. Mr. Stewart considered
bringing a claim against Dr. Postnikoff for breach of the MHA and
for negligence for failing to meet with him prior to the Certification as early
as September 30, 2004. He knew then that his “injury” was that he would be held
in custody against his will past his warrant expiry date. He was aware of his
rights under the MHA and acted upon them. He had also disputed the
psychiatrists’ diagnosis of paranoid schizophrenia for quite some time prior to
the Certification. He had a good working knowledge of the court system from the
criminal charges brought against him before and after the Certification. He was
also familiar with the roles of all participants in the courts and the possible
outcomes of trials and hearings.

[142]     Accordingly,
Mr. Stewart has not met his onus to be able to rely on the postponement
and suspension provisions in the Limitation Act.

SUMMARY

[143]     Although
it is always preferable for a physician to personally observe a patient before
issuing a certification under the MHA, it is not mandatory. Emergent
situations or other exigencies may occur, as was the case here, where immediate
personal observation is not possible. Dr. Postnikoff’s certification of Mr. Stewart
on September 29, 2009 was a valid certification under the MHA. He
appropriately relied upon sufficiently reliable and credible information, both
documentary and oral, from other highly qualified and trained medical
professionals, including nursing staff. Dr. Postnikoff acted in accordance
with standard practice and met the requisite standard of care.

[144]     Even if the
Certification was invalid, Dr. Postnikoff is shielded from liability by
s. 16 of the MHA because he acted with reasonable care and in good
faith.

[145]     Dr. Postnikoff’s
conduct did not cause Mr. Stewart to suffer any loss because he would have
been certified by his treating psychiatrist in any event, a second
certification would have been sought and issued, and Mr. Stewart would
have remained in custody past his warrant expiry date.

[146]     If Mr. Stewart
were entitled to damages, then the award would be nominal damages of $1,000.

[147]     Mr. Stewart
has not demonstrated that the postponement and suspension provisions of the Limitation
Act are engaged in this case. His claim against Dr. Postnikoff was
time barred when he commenced this action.

[148]     Mr. Stewart’s
action against Dr. Postnikoff is dismissed.

[149]    
In conclusion, I wish to highlight that Mr. Stewart has never been
convicted of a sexual offence. I also wish to remark upon the genuineness in
which Mr. Stewart believes in his message. There is no question that Mr. Stewart
truly believes in his message and the importance of delivering it as soon as
possible. It is unfortunate that he has, up until closing submissions in trial,
continued to deny that he suffers from a mental illness. It was only during
argument that he conceded that he may suffer from a mental illness. Hopefully, Mr. Stewart
will heed the advice of all of the treating and consulting professionals and
pursue treatment that will be of unquestionable value in treating his symptoms
and is vital if he intends to assimilate in the community at large outside of a
correctional facility.

“P. Walker J.”

_______________________________

The Honourable Mr. Justice Walker