Health Law

The Court of Appeal for Ontario dismissed the appeal of Pierre Dartiguenave from a disposition of the Ontario Review Board.

The Crown requested dismissal on the basis that Mr. Dartiguenave was no longer under the jurisdiction of the Board, and the appellant could not be located.

The appeal was dismissed.

The plaintiff, Gabriela Lucuta, sought to set aside a 2019 consent order dismissing her medical malpractice action against Dr. David Stevens, Dr. Peter Stevenson, and Grand River Hospital, arguing that her agreement to settle was obtained under duress and unconscionability.

The court found no evidence of threats, coercion, or improvident bargain, and held that the settlement was fairly negotiated.

The motion was dismissed.

The self-represented moving party sought an extension of time to appeal a summary judgment dismissing his medical malpractice action against numerous doctors and a hospital for alleged failure to diagnose and treat Lyme disease.

The motion judge had previously dismissed the action due to the plaintiff's failure to provide admissible expert evidence on standard of care and causation, and for procedural non-compliance regarding document filing.

The Court of Appeal denied the extension, finding that despite the moving party's bona fide intention to appeal and the relatively short delay, the proposed appeal lacked arguable merit, primarily due to the absence of admissible expert evidence to support the medical negligence claims and the moving party's failure to adhere to procedural rules.

The applicants sought a declaration that their deceased son's written consent for his cryopreserved sperm complied with the Assisted Human Reproduction Act and its regulations, and an order for its release to create an embryo.

The court dismissed the application, finding that the Act prohibits the use of human reproductive material for embryo creation without specific written consent for third-party use, and that posthumous donation is limited to a spouse or common-law partner.

The court also found that distributing the sperm in Canada for use outside Canada would still breach the Act due to distribution prohibitions and lack of required testing.

The appellant, found not criminally responsible for theft, appealed the Ontario Review Board's decision to continue his detention order with community privileges, seeking an absolute discharge.

The Board found that an absolute discharge would pose a significant public safety threat due to likely medication non-compliance and substance abuse leading to decompensation.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable.

The court rejected arguments that the Board failed to consider the appellant's improvements or misapprehended evidence regarding substance use, emphasizing that appellate review is limited to reasonableness and does not involve reweighing evidence.

Fresh evidence regarding recent decompensation reinforced the Board's conclusion.

The plaintiff, Cary Beazley, sued 27 physicians and Queensway Carleton Hospital for medical malpractice, alleging delayed diagnosis and treatment of Lyme disease.

Three motions for summary judgment were heard: one by the defendant physicians, one by the Hospital, and a cross-motion by the plaintiff seeking a finding of liability in his favour.

The court dismissed the plaintiff's claims against all defendants, finding that the plaintiff failed to provide admissible expert evidence to support his claims in negligence, negligent misrepresentation, and breach of fiduciary duty.

The court also denied the plaintiff's request to file a second expert affidavit and to be qualified as an expert.

The appellant, found not criminally responsible on account of mental disorder (NCR), appealed a disposition of the Ontario Review Board ordering his detention at Waypoint Centre for Mental Health Care, a high-secure facility.

The Board had recommended a transfer to a high-security facility in Quebec but rejected the appellant's request for an interim transfer to a medium-security facility in Ontario.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable given the appellant's history of elopement, violent behaviour, and refusal of medication, which posed a significant threat to public safety.

The court upheld the Board's acceptance of the psychiatrist's opinion that the appellant was not suitable for a medium-security transfer at that time, emphasizing public safety as the paramount consideration.

The appellant, found not criminally responsible on account of mental disorder (NCRMD) for attempted murder, appealed the Ontario Review Board's (ORB) decision to continue his conditional discharge, seeking an absolute discharge.

He argued the ORB's finding of a significant threat to public safety was unreasonable and presented fresh evidence of improved stability and a developed therapeutic relationship with his community psychiatrist.

The Court of Appeal dismissed the appeal, finding the ORB's original decision reasonable at the time it was made.

While admitting the fresh evidence, the majority declined to grant an absolute discharge, preferring that the ORB, as the expert body, make that determination at an already scheduled early review hearing.

A dissenting judge would have granted the absolute discharge based on the fresh evidence.

The plaintiffs, Daniele Marthe Hutterli and Charles Hutterli, brought a medical negligence action against Dr. Douglas Scott, alleging he failed to meet the standard of care in assessing Mrs. Hutterli's ankle injury.

Mrs. Hutterli sustained an ankle fracture but was misdiagnosed with a sprain, leading to delayed treatment.

The plaintiffs claimed increased cartilage damage and higher risk of osteoarthritis due to the delay.

The court found that Dr. Scott met the standard of care in applying the Ottawa Ankle Rules, despite the misdiagnosis, concluding it was an error in judgment, not negligence.

Furthermore, the court found the plaintiffs failed to prove causation or damages, as there was no evidence that the alleged harm (increased cartilage damage, osteoarthritis risk) was caused by the delay, rather than the original fracture, or that a better outcome would have resulted.

The action was dismissed.

The Crown brought an application under section 672.11(b) of the Criminal Code seeking an order for a mental assessment to determine whether the accused was suffering from a mental disorder at the time of the alleged offences that would render him exempt from criminal responsibility under section 16(1).

The accused faced charges including break and enter, fail to comply with probation orders, resist peace officer, theft, and mischief.

The defence opposed the application.

The court dismissed the Crown's application, finding insufficient reasonable grounds to believe the accused suffered from a mental disorder or that he did not know his actions were wrong at the time of the offences.

This decision addresses a challenge to the admissibility of an expert witness, Dr. David Gladstone, during a medical malpractice trial.

Counsel for the defendants argued that Dr. Gladstone was not impartial or objective and was in a conflict of interest due to a prior treating relationship with the plaintiff.

The court found that Dr. Gladstone had disclosed the prior relationship to the plaintiffs' counsel, believed it irrelevant to his expert opinion, and was confident in his objectivity.

The court also clarified that treating physicians can act as medical experts, with their duty solely to the adjudicative body, not to advocate for former patients.

The judge qualified Dr. Gladstone as an expert and permitted him to testify, criticizing the defendants' counsel for raising the challenge for the first time at trial as a 'trial by ambush'.

This is an appeal by Derek Halat from two dispositions of the Ontario Review Board (ORB), dated January 14, 2019, and April 24, 2019.

The first appeal was rendered moot by the subsequent, stricter disposition.

The appellant, diagnosed with treatment-resistant schizophrenia and substance abuse disorder, was ordered detained at Waypoint, a maximum-security facility, due to a history of violence and recent threatening behavior, including death threats against hospital staff.

The ORB found the appellant continued to present a significant threat to public safety and that his transfer to Waypoint was necessary and appropriate.

The Court of Appeal found the ORB's rationale and outcome reasonable, dismissing the appeal.

An appellant found not criminally responsible for theft under $5,000 appealed the Ontario Review Board's disposition ordering his continued detention at a forensic mental health facility.

The appellant argued there was no evidence he posed a significant risk of physical or psychological violence to the public, citing the absence of violent behaviour in recent years.

The Court of Appeal dismissed the appeal, finding ample evidence supported the Board's finding that the appellant posed a significant threat to public safety based on his mental health history, criminal record, aggressive behaviour in detention, resistance to treatment, risk assessment scores, and lack of insight into his condition.

A 15-year-old youth initiated a protection application against her parents and the Children's Aid Society, seeking temporary care and custody with the Society.

The youth suffers from obsessive-compulsive disorder and post-traumatic stress disorder stemming from childhood sexual abuse.

She refuses treatment and rejects her parents' involvement in her care.

On three separate occasions between May and September 2018, the youth was discharged from hospitals and residential placements with no caregiver willing to assume responsibility, leaving her vulnerable in the community.

The court found that despite the parents' historical efforts to locate treatment, the repeated failure to provide physical care when community placements broke down constituted a protection concern.

The court granted the youth's motion, placing her in the temporary care and custody of the Children's Aid Society and authorizing the Society to act as substitute decision-maker for medical treatment.

The plaintiff suffered a duodenal perforation during outpatient surgery in January 2013, leading to severe complications.

She initiated three actions: the first against her supervising gastroenterologist and "Dr. John Doe" within the limitation period; the second in May 2016 against the gastroenterology fellow who performed the procedure (Dr. Marc Fournier) and other implicated doctors, after identifying them through hospital records; and the third in December 2016 against an emergency doctor (Dr. Hébert) after an expert report suggested his delayed antibiotic administration contributed to her negative outcome.

The defendants in the second and third actions moved for summary judgment, arguing the actions were statute-barred.

The court dismissed the motion, finding genuine issues for trial regarding discoverability, particularly concerning the plaintiff's reasonable diligence in identifying defendants and obtaining expert opinions, given her severe illness and the complexity of the medical facts.

The defendants moved for a stay of the plaintiffs' action until the plaintiff, Tan Duc Ngo, completed a neuropsychological assessment.

This assessment had been previously attempted but terminated due to the plaintiff's health issues, leading to a prior motion before Di Luca J. to compel re-attendance, which was denied without prejudice to renew if new evidence of improved health emerged.

The current motion for a stay was dismissed by Edwards J., who found it an attempt to circumvent Di Luca J.'s order without presenting the required new evidence.

However, the court, acting as case management judge, ordered the plaintiff's counsel to obtain a medical report addressing the plaintiff's current ability to undergo the assessment and to testify at trial, and to explain any discrepancies.

Costs were to be resolved by the parties or through written submissions.

The appellant appealed a disposition order from the Ontario Review Board dated January 5, 2017, which ordered his detention at Waypoint Centre for Mental Health Care – Provincial Forensic Division.

The appellant did not challenge the Board's finding that he posed a significant threat to public safety but argued that his transfer from CAMH to Waypoint was not necessary and appropriate for managing that risk.

He contended that the Board failed to consider the context of his behaviour and that the announcement of his transfer triggered his deterioration.

He also argued the Board did not give sufficient weight to the disruption of his therapeutic and familial relationships.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and amply supported by evidence.

This is an appeal from a Consent and Capacity Board (CCB) decision ordering the substitute decision-maker (SDM) to consent to the withdrawal of life support for her husband.

The appellant, the husband's wife, challenged the CCB's jurisdiction to make a decision binding on her and its finding that cessation of life support was in the patient's best interests.

The court affirmed the CCB's decision, finding its procedural approach reasonable and its determination of the patient's best interests supported by the evidence, including the adequacy of accommodations for the appellant's communication disabilities.

This appeal concerned the mootness of a Consent and Capacity Board decision confirming the appellant's involuntary admission to the Centre for Addiction and Mental Health (CAMH) and her incapacity for treatment.

The appellant was discharged from CAMH, rendering the involuntary admission decision moot.

The court declined to exercise its discretion to hear the constitutional questions related to the 'Box B' provisions of the Mental Health Act and the Charter, citing the lack of a live controversy, the availability of a new procedural route for constitutional challenges, and the recent upholding of the 'Box B' criteria by the Court of Appeal.

The appeal of the involuntary admission decision was dismissed without costs, though the treatment capacity decision remained in force.

The accused was convicted after trial of two counts of assault and two counts of assault with a weapon arising from an incident where he approached two young women fundraising for charity, mistakenly believing one had stolen money from him.

He grabbed one by the wrist and brandished a knife.

Subsequently, while on bail pending sentencing, he was arrested carrying a concealed 12-inch knife and pleaded guilty to breaching a no-weapons recognizance and possession of a weapon for a dangerous purpose.

The sentencing judge imposed a custodial sentence of six and a half months, taking into account the accused's paranoid schizophrenia and its causal connection to the offences, while balancing the need for denunciation and protection of the public.