Health Law

An appeal of an Ontario Review Board disposition dated January 29, 2025, concerning whether the Board erred in declining to add a community living clause to a detention order.

The appellant argued that the majority of the Board focused exclusively on public safety and dismissed the attending psychiatrist's opinion that the clause would be therapeutically beneficial.

The Court of Appeal dismissed the appeal, finding that the Board's majority was entitled to determine that adding a community living clause would be therapeutically harmful on balance in the specific circumstances of the case, notwithstanding the psychiatrist's contrary opinion.

The Centre for Addiction and Mental Health (CAMH) appealed a decision by the Ontario Review Board (ORB) that granted David Aliko an absolute discharge after he was found Not Criminally Responsible (NCR) for various offences due to mental disorder.

CAMH sought to set aside the absolute discharge and reinstate a conditional discharge, citing Mr. Aliko's significant deterioration and new criminal charges post-disposition.

The Court of Appeal admitted fresh evidence detailing Mr. Aliko's post-discharge behaviour and mental state, which indicated a substantial risk of serious harm to the public without Board supervision.

The court found it was in the interests of justice to admit this evidence.

The applicant, S.B., sought guardianship of her adult daughter, A.L., for both property and personal care under the Substitute Decisions Act.

A.L., diagnosed with Autism Spectrum Disorder, Bi-Polar II, and intellectual disabilities, was found by a capacity assessor to be incapable of managing her finances and personal care.

The court granted the guardianship orders, deeming it the least restrictive option given A.L.'s fixed and limited functioning.

However, the court denied S.B.'s request for a broad apprehension order under s. 59(3) of the Act, interpreting the provision as limited to specific instances rather than a general delegation of power.

The Office of the Public Guardian and Trustee was served and provided input on the proposed plans but took no position on the incapacity finding.

This is an appeal from a decision of the Consent and Capacity Board, which upheld a psychiatrist's finding that the appellant was incapable of consenting to treatment with antipsychotic medication for schizophrenia.

The appellant argued the Board misapplied the legal test for capacity and made a palpable and overriding error in its factual findings.

The court dismissed the appeal, finding that the Board applied the correct legal test for capacity under the Health Care Consent Act, 1996, and that its factual findings regarding the appellant's inability to appreciate the manifestations of his mental condition and the foreseeable consequences of treatment decisions were supported by the evidence.

The appellant, found Not Criminally Responsible on Account of Mental Disorder (NCRMD) for a fatal stabbing, appealed the Ontario Review Board's (ORB) decision to continue a detention order, arguing that a conditional discharge was appropriate.

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

The court noted the appellant's history of non-compliance with treatment, tendency to minimize negative stressors, and the very short period he had been in the community after many years of confinement.

The ORB's decision to maintain the detention order was deemed a reasonable outcome to test the appellant in the community and ensure public safety.

The appellant, diagnosed with schizophrenia, appealed a Superior Court decision affirming a Community Treatment Order (CTO) issued by the respondent psychiatrist.

The appeal challenged the Consent and Capacity Board's finding of the appellant's incapacity to consent to treatment and the validity of the CTO.

The Court of Appeal upheld the lower court's decision, finding no palpable and overriding error in the Board's application of the two-part capacity test under the Health Care Consent Act, as interpreted by Starson v. Swayze, and its assessment of the CTO's compliance with the Mental Health Act.

The court affirmed that the appellant failed to appreciate the reasonably foreseeable consequences of not receiving treatment, despite his history of non-compliance and subsequent deterioration.

The appellant, a patient found not criminally responsible due to mental disorder, sought a stay of a Superior Court order authorizing involuntary antipsychotic treatment.

This motion for a stay was brought pending his appeal of a Consent and Capacity Board decision that found him incapable of consenting to treatment.

The Court of Appeal dismissed the stay motion, finding that there was no serious question to be determined on appeal, the appellant would not suffer irreparable harm if the stay was denied, and the balance of convenience and interests of justice favored denying the stay.

The court emphasized the patient's suffering and the risk to hospital staff when he remained untreated.

A mother sought a motion for the return of her infant son to her care or to the paternal grandparents' care following the Children's Aid Society's temporary suspension of all supervised access and parenting support programs due to COVID-19.

The court dismissed the motion seeking return to parental care and the alternative claim for residence with paternal grandparents, finding insufficient evidence and lack of cooperation with court directions.

The court upheld the Society's temporary suspension of face-to-face access as justified by public health concerns, while acknowledging the importance of physical contact between mother and child under normal circumstances.

An appeal from an Ontario Review Board disposition granting a conditional discharge to an NCR accused.

The appellant sought an absolute discharge, arguing he no longer posed a significant threat to public safety.

The Board found the appellant continued to pose a significant threat and imposed conditions including psychiatric medication compliance, monthly hospital reporting, and substance abstinence.

The Court of Appeal found the Board applied the wrong legal test, conflating the possibility of decompensation with a positive finding of significant threat.

However, fresh evidence of subsequent concerning behaviour (drug use, medication non-compliance, renewed focus on the victim) warranted remission to the Board for reassessment under the correct legal standard.

The Retirement Homes Regulatory Authority (RHRA) brought an urgent application seeking an order for In Touch Retirement Living for Vegetarians/Vegans Inc. and Elaine Lindo (the Respondents) to cease operating as an unlicensed retirement home.

The Respondents filed a cross-application challenging the enforcement of the Retirement Homes Act, 2010 on Charter grounds and requesting consideration for a licence.

The court granted the RHRA's application, finding a continuous breach of the Act and dismissing the cross-application due to procedural deficiencies and lack of legal merit for the Charter claims.

Ancillary relief was also granted to ensure the safe transfer of residents.

The appellant was found not criminally responsible on account of mental disorder and ordered detained at Waypoint Centre, a maximum security facility.

On appeal, the appellant sought to have the detention order set aside and a new hearing directed to consider placement at Ontario Shores, a medium security facility.

The Court of Appeal upheld the Ontario Review Board's decision, finding that while the appellant's recent conduct was positive, the Board was required to consider the entire picture, including the serious nature of the mental illness, the long history of mental disorder accompanied by serious criminal activity, past non-compliance with medication, and demonstrated history of quick decompensation and violence when medication was discontinued.

The court found the Board's conclusion that a transfer to medium security was premature was not unreasonable.

Appellants sought a declaration that section 14 of the Health Insurance Act, which prohibits OHIP-eligible Ontario residents from purchasing private health insurance for OHIP-covered services, violated their Charter rights under section 7.

The appellants' OHIP coverage had been cancelled for failure to prove Ontario residency, and they claimed private insurers refused to sell them insurance citing section 14.

The application judge dismissed the application, finding the appellants were not affected by section 14 itself but rather by an alleged misinterpretation of it by private insurers.

The Court of Appeal upheld the dismissal, holding that the appellants failed to demonstrate that section 14 of the HIA, rather than a misinterpretation by non-parties, was affecting them.

The plaintiff, Byron Gracey, brought a motion on consent for certification of a class action under the Class Proceedings Act, 1992.

The action sought compensation for persons who contracted Giardiasis from the Ramada Beacon Harbourside Hotel pool between September 2012 and January 2013, including derivative claims under the Family Law Act.

The defendant, 1093823 Ontario Limited, and third parties, Regional Municipality of Niagara and Margaret Parks Swimming Schools Limited, consented to certification.

The court found that all criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 were satisfied, and the motion for certification was granted.

An appeal from an Ontario Review Board disposition concerning an individual found not criminally responsible on account of mental disorder.

The appellant sought an absolute discharge after nearly ten years of detention at a psychiatric hospital, while the hospital sought increased security.

The Court of Appeal upheld the Board's finding that the appellant posed a significant risk to public safety based on her history of assaultive behavior, substance abuse, and recent violent incidents.

However, the court found the Board erred by failing to make mandatory its recommendation for independent professional review and a customized treatment plan aimed at eventual community reintegration, given the appellant's prolonged detention without progress and the risk that continued hospitalization may be counter-therapeutic.

The appellant appealed a disposition of the Ontario Review Board that detained him at the Secure Forensic Service of Ontario Shores Centre for Mental Health Sciences with restricted privileges.

The appellant advanced two grounds of appeal: that the Board's finding of significant threat to public safety was unreasonable, and that the Board erred in law by failing to apply section 14 of the Evidence Act regarding corroboration.

The Court of Appeal dismissed both grounds, finding ample evidence supported the significant threat threshold and that section 14 of the Evidence Act does not apply to Review Board proceedings as they fall under federal jurisdiction.

The appellant's collateral Charter application regarding medication was also dismissed as not cognizable on appeal.

An appeal from a motion judge's decision certifying a class action and granting partial summary judgment against an anaesthesiologist in a bacterial infection outbreak case.

The motion judge certified the class proceeding and found the defendant breached his duty of care regarding infection prevention and control practices.

The appellate court allowed the appeal on procedural fairness grounds, finding that the motion judge reformulated the certified common issue without notice to or submissions from the parties, and then decided the summary judgment motion on the basis of this new formulation.

The court held that this violated procedural fairness and entitled the defendant to a new hearing.

The appellant appealed a decision of the Consent and Capacity Board which found her incapable of making treatment decisions regarding anti-psychotic medications.

The Board found she understood relevant information but could not appreciate the foreseeable consequences of her decisions due to her inability to recognize her mental condition's manifestations.

The Superior Court upheld the Board's decision, finding no error of law and that the Board's application of the capacity test was reasonable, particularly regarding the corroboration of suicidal ideation as a manifestation of her condition, despite her attributing it to life circumstances.

An appeal under Part XX.1 of the Criminal Code against a disposition of the Ontario Review Board dated May 20, 2016.

The hospital had recommended a conditional discharge, but the Board imposed a detention order with conditions.

The appellant challenged the Board's decision on multiple grounds, including the refusal to order a conditional discharge and the failure to order a second opinion or independent assessment in light of a potential treatment impasse.

The Court of Appeal upheld the Board's decision, finding no error in the Board's reasoning regarding the appellant's non-compliance with essential drug treatment and the requirement for hospital-approved residence.

The defendants moved for summary judgment in multiple consolidated medical malpractice actions, arguing that the plaintiffs' claims were statute-barred by the Limitations Act, 2002.

The plaintiffs contended that their claims were only discovered after a 2011 press release and media coverage regarding allegations against Dr. Frank.

The court applied the objective discoverability test, finding that the plaintiffs were aware, or ought to have been aware, of the material facts giving rise to their claims well before the press release.

The information from the press release did not provide new material facts related to their individual care but rather served as evidence to support existing allegations.

Consequently, the court determined that the plaintiffs failed to demonstrate due diligence in discovering their claims, and thus, their actions were statute-barred.

The Crown applied for an assessment order under section 672.12(3) of the Criminal Code to determine whether the accused was not criminally responsible (NCR) on account of mental disorder at the time of committing uttering threat offences and breaches of probation.

The accused opposed the application, arguing the Crown had not met the statutory threshold of "reasonable grounds to doubt" criminal responsibility.

The court granted the Crown's application, finding that the evidence, including Dr. Komer's assessment and the accused's history of mental illness, pointed to a potential inability to understand the nature and consequences of his actions or that they were wrong as contemplated by section 16 of the Criminal Code.