Ken. J. Berger

An appeal from a December 14, 2016 Ontario Review Board disposition ordering the detention of a not criminally responsible accused at the General Forensic Unit of the Centre for Addiction and Mental Health.

The appellant, diagnosed with bipolar disorder and substance-use disorder, had committed index offences in 2004 involving robbery and theft.

The Board found the appellant posed a significant threat to public safety due to continued substance abuse and manic symptoms.

The Court of Appeal admitted fresh evidence of post-decision disruptive conduct and upheld the detention order, finding the Board reasonably applied the "significant threat" standard and selected the least restrictive disposition appropriate in the circumstances.

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.

The appellant appealed the Ontario Review Board's disposition maintaining a detention order for his care.

The appellant had been found not criminally responsible on account of mental disorder for assault, forcible confinement, and criminal harassment.

The Board accepted a joint submission from the appellant's counsel and physician to continue detention with increased community passes.

The appellant argued the Board erred in accepting the joint submission without properly discharging its inquisitorial duty.

The Court of Appeal dismissed the appeal, finding the Board was entitled to rely on the joint submission and had conducted its own inquiry concluding the appellant remained a significant threat to public safety.

This appeal concerned the mootness of a Consent and Capacity Board decision confirming the appellant's involuntary admission to the Centre for Addiction and Mental Health (CAMH) and her incapacity for treatment.

The appellant was discharged from CAMH, rendering the involuntary admission decision moot.

The court declined to exercise its discretion to hear the constitutional questions related to the 'Box B' provisions of the Mental Health Act and the Charter, citing the lack of a live controversy, the availability of a new procedural route for constitutional challenges, and the recent upholding of the 'Box B' criteria by the Court of Appeal.

The appeal of the involuntary admission decision was dismissed without costs, though the treatment capacity decision remained in force.

The applicant sought leave to appeal an order dated January 27, 2017, which authorized the interim administration of clozapine under the Health Care Consent Act, pending an appeal from a decision of the Consent and Capacity Board.

The applicant also sought a stay of the interim treatment order if leave was granted.

The court dismissed the motion for leave to appeal, finding that the applicant failed to meet the two-part test under Rule 62.02(4) of the Rules of Civil Procedure.

Specifically, there was no conflicting decision on a matter of principle, nor was there sufficient reason to doubt the correctness of the original order.

The court also noted that the proposed appeal did not involve matters of such importance to warrant leave, particularly given the applicant's strategic decision not to accelerate the main appeal involving constitutional issues.

The appellant, an involuntary psychiatric patient, sought to appeal an order authorizing a change in her anti-psychotic medication.

After Legal Aid refused to fund the motion for leave to appeal, the appellant brought a motion to appoint her former counsel as amicus curiae.

The Divisional Court granted the motion, appointing the counsel as amicus curiae to represent unrepresented interests and act tantamount to counsel for the appellant in the leave motion and related proceedings, with costs to be paid by the Attorney General.

The appellant appealed a review decision upholding an inspection order that required him to remove excessive combustible materials (hoarding) from his home.

The appellant argued the inspection violated Charter values due to alleged harassment, that hoarding is not a fire safety issue, and that he had since complied with the order.

The Fire Safety Commission dismissed the appeal, finding no evidence of harassment, that hoarding poses a significant fire safety risk to occupants and first responders, and that subsequent compliance does not invalidate the original order.

The appellant, found NCR in 2007, appealed an Ontario Review Board order transferring him from a general forensic unit to a secure forensic unit.

The hospital recommended the transfer because the appellant's repeated breaches of the anti-smoking policy and drug use resulted in the suspension of his indirectly supervised passes, making his detention on the general unit more restrictive due to staffing limitations.

The secure unit offered better access to necessary substance abuse programming.

The Court of Appeal dismissed the appeal, finding the Board's disposition reasonable as it would enhance the appellant's rehabilitation and reintegration into society.

The Children's Aid Society brought a motion to vary a temporary supervision order to compel a 15-year-old child to attend a special education program daily.

The child had been absent from school for three years due to serious medical conditions involving chronic urination, vomiting, and diarrhea.

The mother opposed the motion, believing home schooling was in the child's best interests.

The court dismissed the motion, finding that the requested condition was not proportionate to any increase in risk, was overly intrusive, and was based on untested expert opinion.

The court was also concerned about potential emotional harm to the child if forced to attend school.

The appellant appealed a Consent and Capacity Board decision confirming incapacity to consent to treatment for schizophrenia under a community treatment plan.

The court refused to admit proposed fresh evidence, holding that the pregnancy-related testing and competing psychiatric letter failed the Palmer criteria for relevance, credibility, due diligence, and likely effect on the result.

Applying a reasonableness standard to the Board’s application of the statutory capacity test, the court held that the Board properly relied on corroborated evidence, including hearsay, and reasonably found that the appellant could understand treatment information but could not appreciate the reasonably foreseeable consequences of refusing treatment.

The court also held that revocation of the community treatment order did not extinguish the community treatment plan.

The appellant appealed a Consent and Capacity Board decision confirming her involuntary admission to a psychiatric facility and finding her incapable of consenting to treatment with antipsychotic medication.

She argued the Board misapprehended the evidence, applied the wrong legal test, and reached an unreasonable decision.

The court held that the appropriate standard of review for mixed questions of fact and law was reasonableness and found the Board’s decision comprehensive and supported by the evidence, including medical records and witness testimony regarding deteriorating mental and physical condition.

The court concluded that the statutory requirements under the Health Care Consent Act and Mental Health Act were properly applied.

The appeal was dismissed.

The Applicant appealed a decision by the Registrar of Motor Vehicles to suspend her driver's licence after receiving a Medical Condition Report indicating alcohol dependence.

The Applicant had voluntarily sought help for her evening wine consumption and subsequently stopped drinking.

The Tribunal found that the automatic suspension based solely on a checked box on the medical report lacked nuance, and that the Applicant did not currently suffer from an alcohol addiction likely to significantly interfere with her ability to drive safely.

The Registrar's decision to suspend the licence was set aside.

The appellant appealed a decision of the Consent and Capacity Board confirming his involuntary admission under s. 20(5) of the Mental Health Act and a finding that he was incapable of consenting to treatment under s. 4(1) of the Health Care Consent Act, 1996.

The court held that the Board’s finding of involuntary status was unreasonable because it relied on unreliable hearsay evidence and insufficient medical evidence to establish a likelihood of serious bodily harm or serious physical impairment.

However, the court upheld the Board’s determination that the appellant lacked capacity to consent to treatment, finding clear, cogent, and compelling evidence that he was unable to appreciate the reasonably foreseeable consequences of refusing treatment due to his mental condition.

The appeal was therefore allowed in part.

The involuntary status finding was set aside, but the incapacity determination was confirmed.

The applicant filed an application under the Human Rights Code more than one year after the last incident of alleged discrimination.

The Tribunal issued a Notice of Intent to Dismiss for delay.

The applicant submitted that the delay was caused by a high-risk pregnancy, bed rest, and subsequent childcare responsibilities.

The Tribunal found it was not plain and obvious that the delay was not incurred in good faith.

The Tribunal directed that the application continue, leaving the respondents the opportunity to make further submissions on the issue of delay.

The applicant union brought applications alleging that the City of Toronto and the Toronto Parking Authority were a single employer or that a sale of business had occurred, alongside a construction grievance regarding the contracting of a parking garage to a non-union contractor.

The responding parties brought preliminary motions arguing res judicata based on prior PSLRTA proceedings and that the Board should decline to exercise its discretion under section 1(4) of the Labour Relations Act.

The Board rejected the res judicata argument but dismissed the related employer application, finding no labour relations mischief to remedy as the entities had operated separately for years without the union seeking to formalize bargaining rights.