Health Law

The applicants, Shoppers Drug Mart and Katz Group, successfully challenged provincial regulations banning pharmacies from selling private label generic drugs at the Divisional Court.

The Minister of Health appealed.

The Court of Appeal allowed the appeal, finding that the regulations were intra vires the Ontario Drug Benefit Act and the Drug Interchangeability and Dispensing Fee Act.

The Court held that the regulations validly imposed conditions on the drug supply chain to control prescription drug costs, rather than constituting an unauthorized prohibition, interference with commercial rights, or illegal discrimination.

The appellants commenced a medical malpractice action in 1995 following a motorcycle accident in 1994.

Fifteen years later, the respondents successfully moved to dismiss the action for delay under Rule 24.01.

The appellants appealed, arguing the motion judge erred in finding inexcusable delay and presumed prejudice, particularly given the availability of medical records.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the 15-year delay was inordinate and inexcusable, and that the appellants failed to rebut the presumption of prejudice given the potential loss of evidence from unrecorded team discussions.

The appellant appealed a disposition of the Ontario Review Board that continued his detention in a medium secure unit, seeking a transfer to a minimum secure unit or a hybrid order.

The Court of Appeal dismissed the appeal, finding the Board's order was not unreasonable given the treating psychiatrist's evidence that the appellant remained a high risk to reoffend and had yet to undergo psychiatric testing.

The appellant appealed a disposition of the Ontario Review Board imposing a detention order that required him to live in 'supervised accommodation' if living in the community.

The Court of Appeal found the Board did not act unreasonably in imposing a detention order, but erred in unilaterally imposing the 'supervised accommodation' term without allowing submissions on its meaning, need, or availability.

The appeal was allowed to vary the order, removing the 'supervised accommodation' requirement but directing that the appellant not reside with his father.

The appellants appealed the dismissal of their medical negligence action relating to a birth injury that resulted in cerebral palsy.

The trial judge had dismissed the action against the attending obstetrician, nurse, and hospital.

The Court of Appeal allowed the appeal with respect to the obstetrician, finding that the trial judge made inconsistent findings regarding the interpretability of fetal heart rate monitor outputs and erred in concluding that the bradycardia would have occurred regardless of the application of a vacuum extractor.

A new trial was ordered for the claim against the obstetrician.

The appeal regarding the nurse and hospital was dismissed.

The appellants appealed a trial judge's decision to invoke Rule 52.08 of the Rules of Civil Procedure to overturn a jury's finding of negligence against the respondent doctor.

The jury had found that the respondent's delay in transferring the appellant to another facility caused his paraplegia.

The Court of Appeal upheld the trial judge's decision, finding that while the respondent breached the standard of care by delaying the transfer, the appellants failed to adduce any expert evidence proving that an earlier transfer would have resulted in a timely diagnosis and surgery to prevent the paralysis.

The appeal was dismissed.

The appellant, who was previously found not criminally responsible on account of mental disorder, appealed a disposition of the Ontario Review Board ordering his detention in a medium secure unit.

The appellant argued that the disposition was unreasonable, that the Board failed to consider the statutory factors, that the reasons were inadequate, and that a treatment impasse had been reached.

The Court of Appeal dismissed the appeal, finding that the Board's decision was reasonable given the significant escalation in the appellant's aggressive and threatening behaviour and the expert evidence supporting the need for a higher security level.

The applicant sought judicial review of an arbitrator's interim award ordering the pre-hearing production of a grievor's psychiatric records from the Centre for Addiction and Mental Health.

The applicant argued that under section 35(9) of the Mental Health Act, only the Divisional Court could order such production.

The Divisional Court held that the arbitrator correctly interpreted the legislation, finding that section 35(5) permits pre-hearing disclosure of mental health records pursuant to a summons or order without requiring a section 35(9) determination, which applies to the admission of evidence at a hearing.

However, the Court found the arbitrator's order was over-broad and amended it to limit the scope of records and require initial disclosure only to the arbitrator to assess relevance and privacy interests.

The appellant chiropractor appealed a Discipline Committee finding of professional misconduct and mandatory revocation of his registration for sexually abusing a patient.

The appellant and the complainant had a pre-existing intimate and sexual relationship before she became his patient.

The Divisional Court found the Committee's decision unreasonable because it failed to properly consider whether the sexual relationship arose out of the pre-existing spousal relationship rather than the professional-patient relationship, misinterpreting the concept of 'incidental' treatment.

The appeal was allowed and the matter remitted for a new hearing.

The applicant, a pharmaceutical manufacturer, sought judicial review of a recommendation by the Canadian Agency for Drugs and Technologies in Health (CADTH).

The applicant alleged that CADTH breached its duty of procedural fairness by failing to publish draft rules for a pilot project and by allowing a competitor to participate, thereby giving the competitor an unfair market advantage.

The Divisional Court dismissed the application, finding that CADTH had widely communicated the existence of the pilot project to the industry and that any manufacturer, including the applicant, could have volunteered to participate.

The court concluded that CADTH's conduct was transparent, even-handed, and reasonable, and that there was no breach of the applicant's legitimate expectations.

The appellant, an involuntary psychiatric patient, appealed a Superior Court decision upholding the Consent and Capacity Board's findings that she was incapable of consenting to treatment and managing her property.

The Board found that while the appellant could understand relevant information, her delusional disorder prevented her from appreciating the reasonably foreseeable consequences of her decisions.

The Court of Appeal dismissed the appeal, holding that the Board applied the correct legal tests from Starson v. Swaze and that its conclusions were reasonable and supported by the medical evidence.

Four physicians appealed the dismissal of their action against a hospital regarding a reduction in their operating room allocation.

The motion judge had dismissed the action against the hospital, finding the court lacked jurisdiction as the matter fell under the statutory review regime of the Public Hospitals Act, but allowed the action to continue against the hospital's CEO.

The Court of Appeal dismissed the physicians' appeal and allowed the CEO's cross-appeal, concluding that the dispute over operating room access was a matter of hospital privileges governed by the Act, and that the pleadings failed to allege any personal wrongdoing by the CEO.

The appellant, who was found not criminally responsible for criminal harassment, appealed the Ontario Review Board's disposition detaining her in a minimum secure facility.

She argued the Board erred by failing to inquire whether she would consent to a conditional discharge subject to continued medication treatment.

The Court of Appeal dismissed the appeal, finding that such an inquiry was unnecessary because the appellant had been found incapable of consenting to treatment and lacked insight into her illness, making a conditional discharge an unrealistic option on the evidence.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal noted a six-month delay in the delivery of the Board's reasons and urged the Board to deliver reasons promptly in the future.

The Court declined to assess alleged factual errors, noting that a new hearing was scheduled for the following week where counsel could ensure the Board had a proper appreciation of the facts.

The appeal was dismissed.

The appellant appealed a disposition of the Ontario Review Board, arguing the Board misunderstood the terms of a joint recommendation regarding his community and grounds supervision.

The Court of Appeal dismissed the appeal, finding the record did not support the appellant's contention and that the Board gave careful reasons for adding restrictions to his privileges.

The appellant appealed a disposition of the Ontario Review Board transferring him to a maximum-security facility.

The appellant argued that the hospital breached its statutory duty under s. 672.56(2) of the Criminal Code by failing to provide notice of an increase in restrictions on his liberty.

The Court of Appeal accepted that a breach occurred, but found the issue moot given the Board's subsequent transfer decision.

The Court dismissed the appeal, finding the Board's decision was supported by unchallenged expert evidence from the treating physician that the appellant was not suitable for a medium-security placement.

The Lieutenant Governor in Council, Minister of Health, and Attorney General of Ontario appealed a Divisional Court order quashing a regulation that removed Apo-Flavoxate as an interchangeable drug product under the Drug Interchangeability and Dispensing Fee Act (DIDFA).

The Court of Appeal allowed the appeal, finding that the de-listing was accomplished by a regulation enacted by the LGIC pursuant to s. 14(1.1) of the DIDFA, which grants broad power to remove designations in the public interest.

The Court held that the rules of procedural fairness do not apply to public bodies exercising legislative functions, and the regulation was not outside the statutory purpose.

The applicant hospital brought a motion under s. 672.76 of the Criminal Code to suspend a disposition of the Ontario Review Board pending appeal.

The Board had ordered the respondent, who was found not criminally responsible, to be detained in a medium secure unit.

The applicant sought to transfer the respondent to a maximum security facility.

The Court of Appeal dismissed the motion, holding that suspending a Board disposition requires compelling evidence of extraordinary circumstances, which the applicant failed to provide as the evidence on the motion was the same as that considered by the Board.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal dismissed the appeal, holding that even if the appeal was not moot, the Board's disposition was reasonable and supported by the evidence.

The appellants appealed a jury verdict finding no negligence by the respondent radiologist and ultrasound technician regarding a fetal ultrasound that failed to detect a congenital abnormality.

The appellants argued the trial judge erred by reserving on a motion to strike the jury, failing to instruct the jury on the 'wrongful life' claim, and excluding OHIP billing evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's decision to reserve on the jury motion, holding that the jury's finding of no negligence rendered the legal distinctions between wrongful birth and wrongful life moot, and agreeing that the OHIP billing evidence was irrelevant.