Marshall A. Swadron

Following the dismissal of a constitutional challenge to amendments to the Mental Health Act enacted through Brian's Law, the unsuccessful public interest applicant sought costs on a partial indemnity basis.

The court considered whether this was one of the rare and exceptional cases where costs should be awarded to an unsuccessful constitutional litigant.

Applying the discretionary principles governing costs under s. 131(1) of the Courts of Justice Act and jurisprudence on public interest litigation, the court emphasized factors including the importance of the issues, the novelty of the constitutional challenge, the applicant’s limited resources, and the quality of the litigation.

The court also considered that interim funding might have been granted had it been requested.

Weighing all factors, the court concluded that the circumstances justified a partial costs award.

Applicants challenged the constitutionality of amendments to Ontario’s Mental Health Act introduced by Brian’s Law, including expanded civil commitment criteria (Box B) and the community treatment order regime.

They alleged the provisions violated ss. 7, 9, 10, 12, and 15 of the Canadian Charter of Rights and Freedoms by permitting involuntary psychiatric assessment, detention, and community-based treatment for persons not posing a danger to themselves or others.

The court held that the legislation pursued a dual purpose of public safety and improved treatment for individuals with serious mental illness, and that the impugned provisions were neither overbroad, arbitrary, vague, nor grossly disproportionate.

Procedural safeguards, individualized clinical assessments, and consent mechanisms supported the statutory scheme’s constitutionality.

The Charter challenge was dismissed.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal allowed the appeal in part and varied the order below in accordance with the agreement of the parties.

No costs were ordered.

The appellant, an involuntary psychiatric patient, appealed a Superior Court decision upholding the Consent and Capacity Board's findings that she was incapable of consenting to treatment and managing her property.

The Board found that while the appellant could understand relevant information, her delusional disorder prevented her from appreciating the reasonably foreseeable consequences of her decisions.

The Court of Appeal dismissed the appeal, holding that the Board applied the correct legal tests from Starson v. Swaze and that its conclusions were reasonable and supported by the medical evidence.

The appellant filed a public complaint against a police officer, which led to a disciplinary hearing where the officer was found not guilty of discreditable conduct.

The appellant appealed the decision to the Ontario Civilian Commission on Police Services.

Before the appeal could be heard, the officer retired from the police force.

The Commission held a motion to determine its jurisdiction and concluded that under the Police Services Act, it has no jurisdiction to conduct a disciplinary appeal regarding an individual who is no longer a police officer.

The appellant appealed a Hearing Officer's decision that he lacked jurisdiction to proceed with a disciplinary charge of discreditable conduct against a police officer.

The Commission had previously directed the Chief of Police to initiate a hearing within 60 days, but the charge was served 256 days later.

The Commission found that the Hearing Officer's decision was a final decision subject to appeal.

The Commission granted leave to appeal and held that the 60-day direction was not a mandatory condition that invalidated the proceedings if breached.

The Commission revoked the Hearing Officer's decision, found no abuse of process due to delay, and ordered the Chief of Police to proceed with the charge.

The appellant appealed a disposition by the Ontario Review Board.

The Court of Appeal held that the Board's determination that the appellant posed a significant threat to public safety was not unreasonable, relying on the hospital's report and expert testimony.

The Court found the disposition, which allowed the appellant to reside in approved community housing, to be the least onerous and least restrictive option available.

The appeal was dismissed.

The applicant sought judicial review of a decision by the Ontario Civilian Commission on Police Services, which upheld a decision by the Chief's designate regarding a police misconduct complaint.

The Chief's designate had found that the officer acted in good faith when misrepresenting polygraph results to the complainant and concluded there was insufficient proof of misconduct.

The Divisional Court quashed the Commission's decision, holding that the Chief's role under ss. 64(6) and (7) of the Police Services Act is not to make findings of fact or credibility at the preliminary stage, but rather to determine if there is a reasonable basis or an 'air of reality' to the complaint.

The matter was remitted to the Chief or a different designate for redetermination.

The applicant sought judicial review of a decision by the Ontario Civilian Commission on Police Services, which upheld the Chief of Police's decision to dismiss a misconduct complaint.

The Chief's designate had dismissed the complaint at the preliminary stage by making findings of fact and credibility regarding the officer's good faith in misrepresenting polygraph results.

The Divisional Court held that findings of fact and credibility should be determined at a hearing, not at the preliminary screening stage.

The applicable test is whether there is a reasonable basis to the complaint or an 'air of reality' to the evidence.

The Commission's decision was found to be patently unreasonable, quashed, and the matter remitted for redetermination.

The appellant sought a capacity assessment and visitation rights regarding her mother, who suffered from advanced Parkinson's disease and had consented to permanent gastrostomy tube feeding.

The motions judge dismissed the application for lack of jurisdiction under the Substitute Decisions Act and the Health Care Consent Act, and awarded solicitor-and-client costs against the appellant.

The Court of Appeal upheld the dismissal, confirming that a capacity assessment cannot be ordered absent a pending guardianship application or reasonable grounds to doubt capacity.

However, the Court granted leave to appeal the costs award and reduced it to a party-and-party scale, finding no exceptional circumstances to justify punitive costs.

The appellant appealed an order dismissing her negligence claim against a lawyer retained by the Public Trustee.

The Court of Appeal dismissed the appeal, finding no merit in the argument that the Public Trustee's alleged misconduct in obliging the appellant to retain her own counsel created an action in negligence against the Public Trustee's lawyer.

The appellant challenged a trial judgment finding it liable for an eye injury caused during repair of a heat pump, arguing the injury was not caused by the alleged design defect.

The respondents cross-appealed the finding of contributory negligence for failure to wear safety glasses.

The court held both the appeal and cross-appeal were entirely fact-driven and found no palpable and over-riding error in the trial judge’s acceptance of the plaintiff expert’s evidence on design defect and causation.

The finding of 15 percent contributory negligence was also upheld.

Both the appeal and cross-appeal were dismissed with costs.

The appellants appealed a judgment finding negligent criminal defence representation and awarding general and special damages to the former client.

Negligence was conceded on appeal, and the dispute concerned causation and quantification of damages.

The court held that the special damage awards relating to the respondent's mother's legal fees and Legal Aid payments were unsupported.

The majority upheld recoverability of mental distress damages in principle but reduced the award to $15,000 after finding no evidentiary basis to attribute family estrangement to counsel's negligence.

The appellants appealed only the assessment of damages following a negligence finding against criminal defence counsel arising from the handling of an abduction prosecution and plea discussions.

The Court of Appeal held that the respondent could not recover amounts paid toward his mother's legal fees or amounts paid by Legal Aid, as those losses were not legally attributable to the appellants.

The majority further held that while the trial judge erred in linking the respondent's family estrangement to counsel's negligence, the expert psychiatric evidence supported a reduced award for depression caused by the negligent conduct of the defence.

The damages award was reduced to $15,000, with prejudgment interest and trial costs preserved on the basis fixed below.