John Murray McIntyre

The Court of Appeal for Ontario considered when a gender affirming surgery, specifically a vaginoplasty without penectomy, qualifies as an insured service under the Ontario Health Insurance Plan (OHIP).

The court held that vaginoplasty is a specifically listed insured service in the Schedule of Benefits, regardless of whether it is accompanied by a penectomy, and that the exclusion for experimental procedures does not apply to specifically listed services.

The appeal by the General Manager of OHIP was dismissed.

The appellant, Douglas Naus, appealed an order confirming a Consent and Capacity Board decision that he was incapable of consenting to treatment and subject to a community treatment order (CTO) requiring antipsychotic medication.

The Court of Appeal found the appeal from the incapacity finding was moot, but exercised its discretion to decide the CTO issue, holding that the Board and appeal judge erred in interpreting the statutory preconditions for a CTO.

The Court held that the Mental Health Act requires successful treatment to have occurred during a prior hospitalization, not the current one, before a CTO can be issued.

The CTO was quashed.

The appellant, found Not Criminally Responsible (NCR) due to mental disorder, appealed a decision of the Ontario Review Board (ORB) that maintained his detention in a hospital, finding it to be the least onerous and restrictive measure commensurate with public safety.

The appellant had relapsed into drug use and exhibited psychotic symptoms after transitioning to supervised community housing, leading to his readmission to the hospital.

The hospital prematurely revoked his community housing approval before the ORB hearing.

The Court of Appeal found the ORB's decision to continue detention reasonable, given the appellant's history of violence, recent threats, and denial of substance abuse.

While acknowledging the hospital's premature revocation of housing approval undermined procedural fairness, the court found the appellant ultimately received a fair hearing and that there was no basis for appellate intervention.

The appeal was dismissed.

The appellant, Rees Kozoubenko, appealed a Superior Court decision upholding a Consent and Capacity Board finding that he was incapable of consenting to anti-psychotic medication in 2018.

The Court of Appeal considered a motion by the respondent, Dr. Milena Gosk, to dismiss the appeal as moot due to the passage of time and the appellant no longer being an in-patient or having proposed treatment.

The court granted the motion, dismissing the appeal as moot, finding that a decision on the merits would not have a practical effect on the appellant's rights given the time- and treatment-specific nature of capacity assessments under the Health Care Consent Act.

This is an appeal from a Consent and Capacity Board decision finding the appellant, SBJ, incapable of consenting to psychiatric treatment.

The appeal raised two main issues: whether gaps in the hearing transcript prevented effective appellate review and whether the Board applied the correct test for capacity.

The court found that despite transcript gaps, no prejudice to appeal rights occurred as the core issue on appeal was a legal error in applying the capacity test, not a misapprehension of facts.

The court also found that while the Board's language regarding "gamesmanship" and "red herring" for side effects might suggest a "best interests" approach, the Board ultimately applied the correct legal test by focusing on SBJ's inability to appreciate the depth of his disorder and its manifestations.

The appeal was dismissed.

The respondent brought a motion to admit fresh evidence and to dismiss the appellant's appeal from a Consent and Capacity Board decision for delay or as moot.

The court admitted the fresh evidence without requiring leave, finding it relevant to the motion.

The court found the appeal should be dismissed for delay due to the appellant's two-year inaction and relocation to the Congo, and also found the appeal moot as the appellant had been discharged from treatment and the capacity issue was no longer a live dispute.

The motion was granted, and the appeal was dismissed.

The plaintiff, a foreign-trained medical doctor, sued the Medical Council of Canada (MCC) for $12 million, alleging negligence and breach of contract due to the MCC's purported failure to forward his examination results to the Canadian Residency Matching Service (CaRMS) over 20 years, preventing him from securing a medical residency.

The MCC moved for summary judgment.

The court granted summary judgment, finding no genuine issue for trial.

It determined that the plaintiff's 2015-16 application failed due to his own missed deadline and ineligibility (lack of a prerequisite exam).

For historical claims (1991-2015), CaRMS records confirmed results were transferred when the MCC was responsible, and prior to 2003, it was the plaintiff's responsibility.

The court also rejected the MCC's abuse of process argument, noting the current action was against a different defendant with a distinct focus.

The plaintiff's action was dismissed, and he was ordered to pay $5000 in costs to the MCC.

An appeal from an Ontario Review Board decision concerning whether the Royal Ottawa Mental Health Centre was required to notify the Board of a significant increase in restrictions on the appellant's liberty when she was transferred from the Secure Forensic Rehabilitation Unit (FRU) to the Secure Forensic Assessment Unit (FAU).

The appellant, found not criminally responsible in 2004, had been abusing substances while on the FRU, leading to the transfer.

The Board was divided on whether notice was required under s. 672.56(2) of the Criminal Code, but unanimously concluded that the transfer constituted the least onerous and least restrictive measure available.

The Court of Appeal dismissed the appeal, establishing a framework for determining when notice of significant increases in restrictions on liberty is required.

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.

This dental malpractice action involved two summary judgment motions based on limitation periods.

The defendant dental surgeon, Dr. Harper, argued the action was time-barred by the one-year limitation period in the Health Professions Procedural Code.

The defendant Hospital relied on the two-year limitation period in the Public Hospitals Act.

The court dismissed Dr. Harper's motion, finding a genuine issue for trial regarding the plaintiff's discoverability of biological hazards.

However, the Hospital's motion was granted, as its limitation period was not subject to discoverability and had expired years before the action was commenced.