Health Law

The appellant appealed the dismissal of his actions against the College of Physicians and Surgeons of Ontario.

The motion judge had dismissed the actions under Rule 21.

The Court of Appeal agreed, finding that the College's actions, including a referral to the Fitness to Practice Committee, were taken in accordance with its statutory mandate under the Regulated Health Professions Act, 1991.

The Court also held that the appellant's Charter claims were properly dismissed as there was nothing to support them.

The appeal was dismissed with costs.

The appellants appealed a summary judgment dismissing their medical malpractice action against a doctor and hospital.

The action arose from a delayed diagnosis of testicular torsion, resulting in the removal of the affected testicle.

The motion judge found that even if the doctor had properly diagnosed the condition when he first saw the patient, there was at most a 10 per cent chance of saving the testicle.

The Court of Appeal upheld the motion judge's conclusion that the 'but for' test for causation was not met and dismissed the appeal.

The respondent patient was in a persistent vegetative state on a mechanical ventilator.

The appellant treating physicians proposed to withdraw life support and provide palliative care, arguing that the life support was medically futile and did not require the consent of the patient's substitute decision-maker.

The substitute decision-maker refused consent.

The Court of Appeal held that the withdrawal of life support and the administration of end-of-life palliative care are integrally linked and constitute a 'treatment package' under the Health Care Consent Act.

Therefore, the physicians required the substitute decision-maker's consent, and in the absence of consent, were required to refer the matter to the Consent and Capacity Board.

The appellants appealed a motion judge's refusal to dismiss the respondents' civil action based on statutory immunity under s. 38.1 of the Independent Health Facilities Act and abuse of process.

The respondents cross-appealed the striking of allegations relating to investigations under the Health Professions Procedural Code.

The Court of Appeal dismissed both the appeals and the cross-appeal, holding that while s. 38.1 provides immunity for losses resulting from specific regulatory orders, factual findings at trial are required to determine if any claimed losses fall outside this protection.

The abuse of process arguments were also left open for trial.

The appellant estate appealed a trial judgment awarding damages for medical malpractice following a fatal infection caused by a dislodged feeding tube.

The trial judge found the surgeon breached the standard of care by failing to suture the jejunum to the abdominal wall, relying on expert opinion interpreting the operative notes.

The Court of Appeal allowed the appeal, holding that the trial judge erred in preferring expert opinion over the direct evidence in the subsequent operative report, which clearly indicated the jejunum was attached.

The action was dismissed.

The appellant hospital appealed a disposition of the Ontario Review Board granting the respondent, who was previously found not criminally responsible, a conditional discharge.

The hospital argued that the respondent's recent involuntary committal under the Mental Health Act triggered a mandatory restriction of liberty hearing under the Criminal Code, and that the Board's disposition improperly blended a conditional discharge with a detention order.

The Court of Appeal held that a Mental Health Act committal does not trigger the Criminal Code hearing requirement.

The Court further found that the Board's disposition was a valid conditional discharge and was reasonable given the respondent's history and the risk management concerns.

The appellant appealed a disposition of the Ontario Review Board that rejected a conditional discharge.

The Court of Appeal found that, aside from a comment regarding the appellant being treatment consent incapable, the Board's decision was reasonable and amply supported by the evidence.

The appeal was dismissed.

The appellant appealed a disposition of the Ontario Review Board, seeking an absolute or conditional discharge.

The Court of Appeal upheld the Board's decision that the appellant posed a significant threat to public safety due to his history of violence, mental illness, and limited insight.

The Court found the Board reasonably concluded that a conditional discharge could not sufficiently manage the risk of decompensation and that detention was the least onerous and least restrictive disposition.

The appeal was dismissed.

The appellant, who was previously found not criminally responsible (NCR), appealed a disposition of the Ontario Review Board continuing his detention at a psychiatric hospital.

The amicus curiae argued the Board erred by failing to appoint counsel for the unrepresented appellant under s. 672.5(8) of the Criminal Code or by failing to provide adequate assistance during the hearing.

The Court of Appeal dismissed the appeal, finding that the Board properly considered whether the interests of justice required appointing counsel and reasonably concluded the appellant could participate fairly.

The Court also held that the Board's decision to continue the appellant's detention was reasonable and supported by evidence of his lack of insight, substance abuse history, and risk of violence.

The appellant appealed from two dispositions of the Ontario Review Board that ordered his detention at a minimum security unit.

The appellant argued that the Board erred in failing to grant him an absolute or conditional discharge, asserting he no longer posed a significant threat to public safety.

The Court of Appeal dismissed the appeal, finding that the Board did not improperly shift the burden of proof and that its conclusion regarding the appellant's threat to public safety was reasonable based on the expert evidence.

The Court also held that a conditional discharge was not realistic given the appellant's failure to comply with hospital conditions.

The appellant appealed a disposition of the Ontario Review Board ordering his continued detention with community privileges.

The respondents sought to introduce fresh evidence regarding recent events, which the Court of Appeal declined to admit to avoid delaying the hearing until the next annual review.

On the merits, the Court found the Board's conclusion that the appellant remained a significant threat to public safety was supported by the evidence and dismissed the appeal.

The appellant, who suffers from schizoaffective disorder, appealed a disposition of the Ontario Review Board that ordered his continued detention at a mental health facility rather than granting an absolute or conditional discharge.

At the hearing, the appellant abandoned his request for a conditional discharge and sought only an absolute discharge.

The Court of Appeal dismissed the appeal, finding that the Board reasonably concluded the appellant presented a significant threat to public safety and that continued detention was the least onerous and least restrictive disposition available.

The self-represented appellant appealed a disposition of the Ontario Review Board.

The appellant expressed frustrations regarding his institutional living conditions.

The Court of Appeal found the Board's decision to be reasonable and dismissed the appeal, while expressing hope that the Board would consider the appellant's concerns at his upcoming hearing.

The appellants were notified by public health authorities of potential exposure to tuberculosis at the respondent hospital.

Although none tested positive, they brought a class action claiming damages for psychological harm caused by the notification.

The motion judge granted summary judgment dismissing the claims because the appellants did not suffer a recognizable psychiatric illness.

On appeal, the appellants argued that the Supreme Court of Canada in Mustapha eliminated the recognizable psychiatric illness threshold.

The Court of Appeal dismissed the appeal, holding that Mustapha did not change the law and that a recognizable psychiatric illness remains the threshold for compensable psychological injury in negligence.

The appellant appealed an order declaring that the respondent had no legal obligation to terminate her second-trimester pregnancy to mitigate damages in a wrongful birth action.

The Court of Appeal allowed the appeal and set aside the declaration, finding that the issue was not a pure question of law suitable for determination on the pleadings under Rule 20.01(1)(a).

Instead, it was a question of mixed fact and law that required a full factual record at trial.

The appellant hospital appealed a motion judge's order refusing to approve a 1998 infant settlement and granting the plaintiff's motion to amend the claim for damages.

The plaintiff sought the amendment based on new expert evidence indicating her life expectancy had increased by 30 to 35 years since the settlement was reached.

The Court of Appeal dismissed the appeal, finding the motion judge correctly focused on the best interests of the child under Rule 7.08 of the Rules of Civil Procedure and reasonably relied on the uncontradicted expert evidence regarding life expectancy.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal dismissed the appeal, finding that the Board's order was not unreasonable and noting that any progress made by the appellant could be considered at his next review hearing.

The appellant appealed a disposition of the Ontario Review Board.

The Board had issued a split decision regarding the appellant's security level and privileges.

The Court of Appeal found that while the case was complex and there was some ambiguity in the evidence, the majority's reasons were not unreasonable.

The appeal was dismissed, with the Court noting that a fresh review hearing was scheduled shortly where the appellant's needs and progress could be reassessed.

The appellant, an orthopaedic surgeon, appealed a trial judgment finding him liable for medical malpractice based on a lack of informed consent.

The respondent suffered permanent sciatic nerve damage (foot drop) following a Ganz pelvic osteotomy, eventually requiring a below-the-knee amputation.

The trial judge found the surgery was performed competently but the appellant failed to adequately disclose the risk of permanent nerve damage, and that a reasonable person in the respondent's position would have refused the surgery if properly informed.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's application of the modified objective test for causation or her factual findings regarding the disclosure of risks.

The appellant surgeon appealed a trial judgment finding him negligent in the performance of a mediastinoscopy, during which he unintentionally biopsied the respondent's oesophagus.

The trial judge had rejected the negligence theories advanced by the respondent's expert but found negligence on two unpleaded grounds: failure to take a smaller biopsy and failure to differentiate the oesophagus from the lymph node.

The Court of Appeal allowed the appeal, finding that the trial judge's conclusions were based on a manifestly incorrect finding of fact regarding biopsy size and inferences unsupported by the expert evidence.

The action was dismissed.