Hilary Chung

This decision addresses a Rule 2.1.01 motion concerning multiple proceedings commenced by the plaintiff, Aynoush Biniaz-Sarabi, arising from a motor vehicle accident and subsequent denial of accident benefits.

The court reviews the history of related litigation, including prior decisions by the Licence Appeal Tribunal and Divisional Court, and considers whether the current and related actions are frivolous, vexatious, or an abuse of process.

Several actions are dismissed under Rule 2.1.01, and the court declines to declare the plaintiff a vexatious litigant without a formal motion.

The appellant, found not criminally responsible for aggravated assault, appealed the Ontario Review Board's decision to uphold her detention order.

The ORB found she remained a significant threat to public safety due to diagnosed schizoaffective disorder and substance use disorders.

The Court of Appeal dismissed the appeal, finding no error in the ORB's application of the "significant threat" test from Winko v. British Columbia (Forensic Psychiatric Institute), which requires a real risk of serious physical or psychological harm to the public resulting from criminal conduct.

The appellant, found not criminally responsible on account of mental disorder (NCRMD), appealed the Ontario Review Board's (ORB) disposition.

The appellant challenged the Board's decision to issue a detention order instead of a conditional discharge, and argued that two specific conditions of the detention order were overly restrictive.

The Court of Appeal upheld the detention order, finding it reasonable given the appellant's significant threat to public safety and the joint submission of the parties.

However, the court found two conditions to be unreasonably restrictive: the requirement for "supervised" accommodation and the need for hospital consent for communication with his mother in addition to her own consent.

The appeal was allowed in part, striking the word "supervised" from the accommodation condition and removing the hospital consent requirement from the communication condition.

The defendant, Canadian Mental Health Association, York Region Branch, sought to dismiss the plaintiff's action under Rule 2.1.01(6) of the Rules of Civil Procedure, arguing it was frivolous, vexatious, and an abuse of process.

The plaintiff, self-represented and experiencing homelessness and potential mental illness, alleged breach of contract, privacy torts, negligence, and discrimination.

The court, applying the strict test for Rule 2.1 dismissals, found that while the pleading was scant, it did not clearly fall into the category of being frivolous, vexatious, or an abuse of process on its face.

The motion to dismiss was denied without prejudice to the defendants' right to bring a dismissal motion on other grounds (e.g., Rules 20, 21, or 25.11) with a more complete record.

The appellant appealed a Consent and Capacity Board finding that she was incapable of consenting to treatment.

By the time of the appeal to the Superior Court, her condition had significantly improved, and she had regained capacity.

The Court of Appeal dismissed the appeal as moot, affirming that capacity is assessed at the time of the Board's hearing and that future capacity assessments are distinct.

The court declined to exercise its discretion to hear the appeal despite its mootness, finding no special circumstances to warrant intervention.

The defendant, Kevin Rix, brought a motion to compel the plaintiff, Louise Charron-Rix, to attend a defence orthopaedic assessment and to extend the time for serving the resulting report.

The court dismissed the motion, finding that the defendant's request was made too late, three years after the plaintiff's initial expert report and just two months before trial.

The court emphasized the prejudice to the plaintiff and the risk of delaying the trial, noting that the updated medical records did not disclose new diagnoses justifying a late assessment and that the defendant had not previously asserted the necessity of such an examination.

The appellant, S.B., appealed a decision by the Consent and Capacity Board (the Board) that upheld a physician's finding of his incapacity to manage property due to Huntington's disease.

The Board applied a two-part test under the Substitute Decisions Act, finding S.B. could understand financial information but could not appreciate the reasonably foreseeable consequences of his financial decisions.

The Superior Court of Justice reviewed the appeal on a standard of palpable and overriding error for mixed questions of fact and law.

The court dismissed the appeal, concluding that the Board correctly applied the capacity test by considering S.B.'s lack of insight into his condition's impact on his finances, coupled with his history of poor financial management and vulnerability to exploitation.

The court also rejected the argument that a pre-existing Power of Attorney nullified the capacity assessment, as this issue was not raised at the initial Board hearing.

This appeal concerned a decision by the Consent and Capacity Board (the "Board") confirming the appellant's incapacity to consent to treatment.

Subsequent to the Board's decision, the appellant regained capacity, leading both parties to seek to admit new evidence.

The court admitted the new evidence but ultimately dismissed the appeal, finding it moot as the live controversy regarding the appellant's capacity had disappeared.

In the alternative, the court found no palpable and overriding error in the Board's original decision, which had correctly applied the legal test for capacity under the Health Care Consent Act, 1996.

On an appeal from a Consent and Capacity Board decision, the court upheld the Board’s finding that the appellant was incapable of consenting to a community treatment plan under s. 4(1) of the Health Care Consent Act, 1996.

The court also upheld the Board’s conclusion that certain plan terms were not impermissibly vague or overbroad and that the statutory deterioration criterion under the Mental Health Act was met.

However, the court held that the Board erred in law in finding that the physician had complied with the consultation requirement in s. 33.1(4)(d) of the Mental Health Act, because a written referral to a community agency without any response or agreement before issuance of the order did not amount to consultation.

The appeal was therefore allowed in part and the community treatment order was set aside, with no costs.

Nikolas Jergovic appealed a conditional discharge order from the Ontario Review Board (ORB), seeking an absolute discharge or a new hearing.

He was found not criminally responsible (NCR) for arson in 2010 and has been under ORB supervision.

The Court of Appeal for Ontario reviewed the ORB's decision for unreasonableness, a wrong decision on a question of law, or a miscarriage of justice.

The Court found that the ORB applied the correct "significant risk" test and that its conclusion, based on evidence of potential relapse into drug abuse leading to unlawful conduct, was reasonable and supported by the record.

The appeal was dismissed, upholding the conditional discharge.

The appellant sought an absolute discharge from the Ontario Review Board's jurisdiction, arguing that the Board's finding of a significant threat to public safety was unreasonable.

The Court of Appeal dismissed the appeal, upholding the Board's decision to maintain a conditional discharge.

The court found that despite some progress, the appellant's recent threatening and physically aggressive conduct, including an offer to pay someone to stab his psychiatrist and multiple Code White incidents involving staff assaults, supported the Board's finding of a significant threat.

Fresh evidence regarding the appellant's improved mobility and subsequent aggressive behaviour was admitted and considered.

The appellant appealed the dismissal of her application under the Condominium Act, alleging the respondent corporation failed to properly maintain common elements and acted oppressively regarding a noise complaint from fans above her unit.

The Court of Appeal affirmed the application judge's finding that the corporation acted reasonably and complied with its statutory obligations, thus not breaching the appellant's reasonable expectations or acting oppressively.

The appeal was dismissed, and costs were awarded to the respondent.

The applicant was injured in a rear-end motor vehicle accident and sought statutory accident benefits, including income replacement benefits (IRBs) and medical benefits.

The arbitrator found the applicant was entitled to pre-104 week IRBs because the insurer's own occupational therapy expert concluded she could not perform the essential tasks of her pre-accident employment.

However, post-104 week IRBs were denied as the applicant failed to prove a complete inability to engage in any suitable employment, given her ability to manage a household and work part-time as a house cleaner.

A claim for massage therapy was denied as not reasonable or necessary.

The arbitrator awarded a $1,000 special award against the insurer for unreasonably terminating the pre-104 week IRBs despite clear evidence of the applicant's inability to perform her pre-accident job.

The plaintiff's motion for leave to appeal was previously dismissed with costs.

The defendant sought partial indemnity costs of $4,424.70 plus disbursements and HST.

The plaintiff argued each party should bear their own costs or, alternatively, costs should be fixed between $3,500 and $4,500.

Applying the principles from Boucher, the court fixed the defendant's costs at $4,915.23 inclusive of disbursements and HST, payable by the plaintiff in any event of the cause.

The plaintiff sought leave to appeal an order that denied her leave to amend her statement of claim and disclosure of Technical Standards and Safety Authority (TSSA) investigation files.

The proposed amendments included additional negligence particulars, references to post-incident charges and convictions, and allegations of patterns of behaviour.

The motion judge had found these amendments irrelevant to proving prior negligence and emphasized that punitive damages must be expressly pleaded.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's order and no conflicting decisions on matters of principle.