Trevor S. Fisher

The appellant appealed a decision of the Consent and Capacity Board confirming that he lacked capacity to consent to treatment for a mental disorder under the Health Care Consent Act.

The Board found the appellant incapable of consenting to treatment due to delusional beliefs preventing appreciation of the reasonably foreseeable consequences of refusing medication.

The court held that the Board’s finding of incapacity with respect to anti‑psychotic medication and related side‑effect medication was reasonable and supported by the evidence.

However, the evidentiary record contained insufficient information regarding benzodiazepines and cholinergic medication.

The appeal was therefore allowed in part and the matter remitted to the Board for a rehearing on those medications before a differently constituted panel.

The defendant brought a motion to strike the statement of claim and dismiss the action.

Subsequently, the self-represented plaintiff filed a notice of discontinuance before the close of pleadings, arguing this terminated the action and precluded the defendant's motion.

The court held that the defendant's right to proceed with the motion to dismiss was not abrogated by the subsequent notice of discontinuance, as ignoring this principle would prejudice the defendant by allowing the plaintiff to potentially re-institute the action.

The court allowed the defendant's motion to proceed.

The defendants moved to strike an overlong and prolix statement of claim arising from an alleged failure to treat a child, a report to child protection authorities, and alleged defamation in medical records and related reporting.

The self-represented plaintiff sought to strike counsel's supporting affidavit and to dismiss the hospital's parallel motion on procedural grounds.

The court rejected those procedural objections, holding that an affidavit sworn by a lawyer in the same firm was not improper on these facts and that the hospital's filing deficiencies were mere irregularities.

Applying Rule 25.11, the court found the pleading so filled with evidence, argument, and unnecessary verbatim conversations that the offending portions could not practicably be severed.

The entire statement of claim was struck with leave to file a Fresh as Amended statement of claim within 30 days.

The defendant physicians and hospitals brought a motion to dismiss the plaintiffs' medical negligence action for delay under Rule 24.01(1).

The action, commenced in 2001 following the death of the plaintiffs' family member, had proceeded at a glacial pace primarily due to the plaintiffs' difficulties in obtaining expert medical reports.

The court dismissed the motion, finding that while the delay was lengthy and the plaintiffs were wholly responsible, it was not intentional or contumelious.

Furthermore, the presumption of prejudice was rebutted as the necessary medical records were preserved and the case would largely rely on those records and expert opinions rather than witness memory.