The Attorney General applied for judicial review of a Consent and Capacity Board decision which held that the Board had jurisdiction to determine the constitutional validity of the community treatment order (CTO) provisions of the Mental Health Act.
The Divisional Court applied the Martin test and concluded that the Board's mandate involves applying facts to prescribed statutory criteria, not deciding questions of law.
Furthermore, the strict statutory timelines for Board hearings rebut any presumption of jurisdiction to hear complex Charter challenges.
The application for judicial review was allowed and the Board's decision on jurisdiction was quashed.
