Gavin S. MacKenzie

An appellant who was found not criminally responsible on a charge of assault in 2007 appealed a Superior Court decision dismissing her application for a declaration that section 672.56 of the Criminal Code violated her Charter rights under section 7.

The appellant argued that the section did not afford a not criminally responsible accused the ability to compel the Ontario Review Board to hold a hearing to review a decision by a hospital to significantly increase restrictions on liberty.

The Court of Appeal dismissed the appeal, finding that Part XX.1 of the Criminal Code provides adequate procedural safeguards and liberty protections for such accused persons.

An appeal from the Ontario Review Board's disposition continuing a conditional discharge for an individual found not criminally responsible on account of mental disorder.

The appellant argued that the Board's conclusion that he remained a significant threat to public safety was unreasonable, particularly given his 17-year history without violent behaviour while subject to Board jurisdiction.

The Court of Appeal upheld the Board's decision, finding it fell within the range of reasonable outcomes based on evidence including the appellant's serious index offences, lack of insight into his mental illness, resistance to treatment, high risk assessment scores, and the unanimous opinion of his treatment team that he remained a significant risk.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated February 6, 2018.

The appellant sought a conditional discharge from a detention order, arguing that the proposed conditional discharge terms would provide equivalent public protection.

The Court of Appeal dismissed the appeal but allowed it in part, finding that while the Board's refusal to order a conditional discharge was reasonable and supported by evidence, the Board had erred by failing to remove the 24-hour supervision requirement from the disposition.

The court amended the disposition to remove this phrase, allowing the appellant to continue his transition to less supervised community living.

The respondents appealed an order from the Superior Court of Justice directing a new trial on the basis that the jury's answers on causation were fatally flawed.

The moving parties brought a motion to quash the appeal, arguing that the order was interlocutory and therefore only appealable to the Divisional Court with leave.

The Court of Appeal held that an order directing a new trial is interlocutory in nature, as it does not finally determine the substantive rights of the parties but rather requires another trial for that purpose.

The appeal was quashed and transferred to the Divisional Court.

An appeal from a disposition of the Ontario Review Board dated November 17, 2017.

The appellant sought an absolute discharge or, alternatively, a conditional discharge.

The Court of Appeal dismissed the appeal, finding that counsel had conceded at the hearing before the Board that an absolute discharge was not being sought, and that the evidence fully justified this concession.

The court found no air of reality to the conditional discharge argument, noting that the instability of the appellant's condition was a central concern of the psychiatrists and required ongoing treatment and monitoring.

The defendants, Dr. L., Dr. S., and Hospital A, brought motions to strike portions of the plaintiffs' statement of claim, for partial summary judgment, and to bifurcate the trial in a medical malpractice action.

The plaintiffs alleged negligence and breach of fiduciary duty by Dr. L. for treating J.O. despite knowing or ought to have known of her incompetence, and for failing to disclose past medical errors and complaints.

The court partially granted the motion to strike, removing allegations of failing to disclose general information and past medical errors/complaints to the College of Physicians and Surgeons, but allowed claims of negligence and breach of fiduciary duty based on Dr. L.'s knowledge of her own deficiencies to proceed.

The motions for partial summary judgment and bifurcation were dismissed.

The court also ordered J.O. to provide consent for police records related to a Family Law Act claim.

Appeal from a trial judgment finding that a nurse and hospital were liable for negligence in the care of a newborn who developed kernicterus due to untreated hyperbilirubinemia.

The trial judge found the nurse breached the standard of care by failing to report jaundice to the resident physician and that but for this negligence, phototherapy would have been commenced earlier, preventing the development of kernicterus.

The appellants challenged the causation findings.

The Court of Appeal upheld the trial judgment, finding that the trial judge properly inferred causation based on expert evidence and the factual progression of the infant's condition, and that the appellants could not escape liability by pointing to hypothetical negligence of other physicians.

Alectra Utilities Corporation sought to set aside an arbitration award of $12.3 million in favour of Solar Power Network Inc. (SPN), while SPN sought to enforce it.

The arbitration arose from a dispute over the termination of a Fee-In Tariff Programme agreement (PAMA) by Alectra's predecessor, PowerStream, which the arbitrator found to be in bad faith.

The court upheld the arbitrator's jurisdiction to consider bad faith in the exercise of a contractual right, finding that the PAMA's "sole discretion" and "not subject to dispute" clauses did not insulate bad faith termination.

However, the court found the arbitrator exceeded his jurisdiction by awarding damages for loss of profits, as the PAMA explicitly excluded such damages for breaches of covenant, and SPN's claim was deemed a breach of an implied covenant of good faith.

Alectra's application to set aside the award regarding damages for loss of profits was granted, and SPN's application to enforce the award was denied.

The appellant appealed a disposition order from the Ontario Review Board that imposed a hybrid detention order requiring detention at the Secure Forensic Unit of the Centre for Addiction and Mental Health with discretion to transfer to the General Forensic Unit or allow community residence in approved accommodation.

The appellant, found not criminally responsible for threatening others with a knife in 2011, had been living in the community under conditional discharge but experienced significant deterioration in 2017 due to medication non-compliance and substance use.

The Court of Appeal dismissed the appeal, finding the Board's findings of significant threat and the necessity of the detention order were amply supported by evidence.

Appeal from a trial judgment awarding damages for birth injuries caused by hospital negligence.

The trial judge found that hospital nurses negligently ruptured the membranes during delivery, causing the plaintiff to suffer hypotonic cerebral palsy with serious and permanent impairments.

The appellants admitted falling below the standard of care but contested causation and damages.

The trial judge awarded $5,568,393 in total damages, including $1,881,846 for future loss of income, and costs of $2,201,259.

The appellants appealed the damages award and costs decision.

The Court of Appeal upheld the trial judge's findings and dismissed the appeal.

An appellant appealed the Ontario Review Board's disposition continuing his conditional discharge on terms.

The appellant had been found not criminally responsible on account of mental disorder in 2006 for assault causing bodily harm and mischief.

The Board found the appellant remained a significant threat to public safety based on his lack of insight into his mental illness, his unwillingness to take medication absent a Board order, his continued residual symptoms despite medication, his history of marijuana use leading to clinical worsening, and threatening statements made in 2015.

The Court of Appeal upheld the Board's decision, finding the conclusion that a foreseeable and substantial risk existed was reasonable on the evidence.

An appeal from an Ontario Review Board disposition finding that an NCR accused continues to pose a significant threat to public safety and ordering a conditional discharge rather than an absolute discharge.

The appellant, found not criminally responsible in 2002 for serious violent offences including aggravated assault, kidnapping, and assault with a weapon, argued the Board's finding was unreasonable.

The Court of Appeal upheld the Board's decision, finding sufficient evidence to support the conclusion that the appellant poses a significant threat within the meaning of the Criminal Code, based on his serious index offences, ongoing psychiatric symptoms including paranoid delusions, lack of insight into his mental illness, substance abuse, and stated intention to discontinue medication if absolutely discharged.

An appeal under Part XX.1 of the Criminal Code against the Ontario Review Board's disposition dated June 30, 2017.

The appellant did not contest the Board's finding that he remained a significant threat to public safety or the disposition that he remain detained at the General Forensic Unit at CAMH.

However, he contended the Board acted unreasonably by not including a delegation of authority permitting community living in supervised accommodation when the Hospital deemed it appropriate, as had been included in the previous 2016 disposition.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and entitled to deference, as the evidence clearly showed the appellant was not ready for community living at the time of the hearing.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated May 25, 2017.

The appellant challenged the Board's removal of the possibility of community living from her disposition conditions.

The Board had acted on a joint position to detain the appellant in the secure unit with potential transfer to the general forensic unit but not to the community.

The appellant's treating physician testified that community living was not a realistic goal given the appellant's recent incidents of unauthorized absence and violence towards hospital staff, and that the frustration of an unattainable condition had contributed to the appellant's anger and violent behavior.

The Court of Appeal upheld the Board's decision, finding it entirely reasonable to remove the community living condition based on the evidence.

Two appellants, both found not criminally responsible on account of mental disorder and incapable of consenting to medical treatment under provincial law, appealed detention orders imposed by the Ontario Review Board.

The central issue was whether an accused person incapable of consenting to medical treatment could nonetheless consent to a condition regarding psychiatric or other treatment under section 672.55(1) of the Criminal Code.

The Court of Appeal held that the capacity required to consent to such a condition differs from the capacity required to consent to the treatment itself.

An accused need only understand information relevant to the operation of the condition and appreciate the reasonably foreseeable consequences of agreeing to it, including potential consequences for liberty.

The Court overruled its prior jurisprudence to the contrary and allowed the appeals, remitting the matters back to the Board for re-hearing.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated February 24, 2017.

The appellant sought a conditional discharge, arguing it was the least onerous and least restrictive disposition necessary to protect the public.

The Court of Appeal upheld the Board's decision to impose a detention order with community living privileges at the discretion of the hospital, finding that the Board reasonably determined this was the least onerous and least restrictive disposition given the appellant's admitted risk to public safety, history of non-compliance with medication, alcohol use, and pattern of rule violations.

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.

The appellants appealed a jury verdict dismissing their medical negligence action arising from delayed diagnosis and treatment of an anastomotic leak following routine bowel surgery, which resulted in septic shock and bilateral below-knee amputations.

The jury found five defendants breached the standard of care but that none of the breaches caused the injuries.

The Court of Appeal addressed the proper causation test in delayed diagnosis cases involving multiple tortfeasors, finding that the trial judge's use of the word "necessary" from Clements in jury questions and instructions was problematic and that the phrase "caused or contributed to" should not have been rejected.

However, the court held that the jury clearly accepted the defence theory that a rare necrotizing infection, not the delay, caused the injuries, and no reformulation of questions or instructions would have changed the verdict.

An appeal from an Ontario Review Board disposition ordering that the appellant remain subject to a conditional discharge.

The appellant, a 62-year-old woman with schizophrenia, was found not criminally responsible for assaulting a five-year-old child in 2011.

The Board concluded she remained a significant threat to public safety based on her history of non-compliance with medication and the risk of decompensation if she ceased treatment.

The Court of Appeal allowed the appeal, finding the Board's conclusion unreasonable and speculative.

The court held that the evidence did not meet the onerous standard required under section 672.54 of the Criminal Code for maintaining restraints on an NCR accused's liberty, and ordered an absolute discharge.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated October 31, 2016.

The appeal was dismissed.

An addendum was issued after the reasons were prepared and signed, noting that counsel for the appellant subsequently provided the reasons for a ruling of July 31, 2014, which stayed the criminal harassment charge.

The trial judge's reasons, which detailed the evidence including the effect on the victim and the appellant's assessment under the Mental Health Act, were acknowledged by counsel to undermine many of the arguments made during the appeal, though the court found these reasons did not change the basis for dismissing the appeal.