Maya Kotob

The moving parties sought leave to appeal the decisions of the lower court judge dated March 7 and April 8, 2025.

The Divisional Court dismissed the motion for leave to appeal in writing.

The moving parties were ordered to pay all-inclusive costs of $5,000 to each of the two responding parties.

The court allowed the appeal of Arlene Hastick from a Consent and Capacity Board decision confirming the renewal of her Community Treatment Order (CTO) under the Mental Health Act.

The court found that the Board denied Ms. Hastick procedural fairness by repeatedly preventing her from asking relevant questions of her treating psychiatrist, Dr. Banik, and by relying on evidence about her 2016 hospitalization while refusing to allow her to challenge or clarify that evidence.

The matter was remitted for a new hearing before a differently constituted Board.

This costs endorsement follows the dismissal of an appeal by the Defendants, David Wu and Opus Fitness Investment Inc., against a decision of Associate Justice Perron.

The Defendants argued that the Plaintiff, Ottawa Credit Exchange Limited, increased costs by raising a new argument on appeal.

The Court disagreed, finding the Plaintiff’s argument was responsive and that the Defendants themselves increased costs by raising an unfounded jurisdictional argument.

The Court awarded costs to the Plaintiff in the amount of $4,881.60, inclusive of HST.

The third parties, PricewaterhouseCoopers LLP and Corey Poechman, moved to strike a third-party claim brought against them by the Arbour defendants.

The Arbour defendants sought contribution and indemnity from the third parties for any liability they might face in the main fraud action.

The court found that the third-party claim failed to disclose a reasonable cause of action because it did not allege that the third parties owed any duty to the plaintiffs, which is a requirement for a contribution claim.

Consequently, the court struck the third-party claim but granted the Arbour defendants leave to amend their pleadings.

The appellant, found not criminally responsible, appealed a Review Board disposition maintaining a conditional discharge, seeking an absolute discharge.

The Court of Appeal found the Board's decision unreasonable, as it failed to adequately consider evidence demonstrating the appellant's ability to manage his condition and did not meet the "significant threat to public safety" standard, which is onerous and requires a real risk of serious criminal harm.

The appeal was allowed, and an absolute discharge was granted.

Jeffery Smith, found not criminally responsible (NCR) for assault and uttering threats, appealed the Ontario Review Board's (ORB) decision to continue his conditional discharge.

The appellant sought an absolute discharge, arguing he no longer posed a significant public safety threat.

The ORB, and subsequently the Court of Appeal, found that despite a treating psychiatrist's opinion, other expert opinions and the appellant's history of non-compliance, lack of insight, and recent concerning behaviour (stunt driving and dishonesty) indicated a continued significant threat to public safety without ORB oversight.

The appeal was dismissed, affirming the conditional discharge.

The appellant sought an absolute discharge from the Ontario Review Board's jurisdiction, arguing that the Board's finding of a significant threat to public safety was unreasonable.

The Court of Appeal dismissed the appeal, upholding the Board's decision to maintain a conditional discharge.

The court found that despite some progress, the appellant's recent threatening and physically aggressive conduct, including an offer to pay someone to stab his psychiatrist and multiple Code White incidents involving staff assaults, supported the Board's finding of a significant threat.

Fresh evidence regarding the appellant's improved mobility and subsequent aggressive behaviour was admitted and considered.

The appellant appealed two decisions of the Consent and Capacity Board confirming a Community Treatment Order and upholding a finding of incapacity to consent to treatment with antipsychotic medications.

The Superior Court of Justice applied the palpable and overriding error standard of review to the Board's factual findings.

The court found ample evidence supporting the Board's conclusions that the appellant lacked sufficient insight to appreciate the reasonably foreseeable consequences of his treatment decisions and that he would suffer substantial deterioration without the CTO.

The appeals were dismissed.

The appellant, found Not Criminally Responsible on Account of Mental Disorder (NCRMD) for a fatal stabbing, appealed the Ontario Review Board's (ORB) decision to continue a detention order, arguing that a conditional discharge was appropriate.

The Court of Appeal dismissed the appeal, finding the ORB's decision reasonable.

The court noted the appellant's history of non-compliance with treatment, tendency to minimize negative stressors, and the very short period he had been in the community after many years of confinement.

The ORB's decision to maintain the detention order was deemed a reasonable outcome to test the appellant in the community and ensure public safety.

This decision addresses two appeals by an accused found not criminally responsible (NCRMD) from disposition orders of the Ontario Review Board (ORB).

The first appeal (C68888) challenged a 2020 detention order with community living privileges, which was ultimately adjourned as moot due to a subsequent disposition.

The second appeal (C69217) arose from a 2021 ORB hearing following the revocation of the accused's community living privileges and his re-detention due to new harassment incidents.

A central issue in the second appeal was the ORB's new practice of issuing general detention orders to a "Forensic Service" without specifying the security level of the unit.

The Court of Appeal expressed concern that this practice might hinder the ORB's ability to ensure the least onerous and least restrictive disposition, emphasizing the need for specificity regarding conditions and security levels.

The Court admitted fresh evidence regarding the accused's transfer to a secure unit and the withdrawal of criminal charges.

The Court maintained the 2021 disposition and dismissed the second appeal.

This appeal concerned the Ontario Review Board's refusal to order a psychiatric assessment for an accused, found not criminally responsible by reason of mental disorder (NCRMD) for double murder, who had been designated a "high-risk accused." The accused sought the assessment to promote an application to the Superior Court to remove his high-risk designation, arguing his progress meant he no longer qualified.

The Court of Appeal dismissed the appeal, affirming the Board's decision.

The Court clarified that the "substantial likelihood" test for reviewing a high-risk designation assesses the accused's inherent risk of violence if not subject to external constraints, not their risk under current supervised conditions.

Given the accused's history and ongoing risk factors, the Board's conclusion that an assessment would not change its determination was reasonable.

The Court also noted the Board's error in applying an "onus" on the accused in inquisitorial proceedings, though found it non-prejudicial.

Matthew Gibson, found not criminally responsible (NCR) for criminal harassment and breach of recognizance, appealed the Ontario Review Board's disposition maintaining conditional discharge.

He argued the Board erred in finding he posed a significant threat to public safety, contending the risk assessment was unreasonable and unsupported by evidence, particularly given his compliance with medication and treatment, and stable family support.

The Court of Appeal dismissed the appeal, finding no error in the Board's application of the significant risk test under the Criminal Code.

The court affirmed the Board's holistic consideration of risk factors, including lack of insight into his illness and index offences, and continued cannabis use, which outweighed protective factors, concluding the conditional discharge was necessary to manage the ongoing significant risk to public safety.

The appellant, found not criminally responsible, appealed an Ontario Review Board (ORB) disposition ordering his detention at a forensic psychiatry program, arguing for a conditional discharge.

The ORB had vacated his previous conditional discharge due to concerning behaviours and a deteriorated mental state, supported by psychiatric and risk assessment evidence.

The Court of Appeal dismissed the appeal, finding the ORB's decision reasonable and supported by evidence, noting that a detention order was necessary to allow the Hospital to approve accommodation, consistent with the least onerous and restrictive disposition.

The appellant, who was previously found not criminally responsible on account of mental disorder, appealed a disposition of the Ontario Review Board that ordered his continued detention at the Centre for Addiction and Mental Health.

The appellant argued that a conditional discharge allowing him to return to his independent apartment was the least onerous and least restrictive disposition.

The Court of Appeal dismissed the appeal, finding that the Board's decision was entitled to deference and reasonably concluded that the appellant required close 24-hour supervision due to his history of decompensation, violent behaviour, and substance abuse.

The appellant appealed a decision of the Consent and Capacity Board confirming his attending physician's finding that he was incapable of consenting to treatment with antipsychotic medication.

The appellant argued the Board failed to consider evidence that his psychosis was drug-induced, ignored family dynamics, and failed to address a prior Board decision finding him capable.

The Superior Court of Justice dismissed the appeal, finding that the Board applied the correct legal test under the Health Care Consent Act and had ample cogent evidence to conclude the appellant lacked the capacity to appreciate the reasonably foreseeable consequences of a treatment decision.

Robiel Negash, found not criminally responsible for robbery, appealed the Ontario Review Board's (ORB) conditional discharge, seeking an absolute discharge.

The Court of Appeal for Ontario found that the ORB majority erred by applying a "possibility" rather than "probability" test for significant risk to public safety and failed to address inconsistencies in the treating psychiatrist's evidence.

The appeal was allowed, and the matter was remitted to the ORB for a fresh determination.

The appellant, found Not Criminally Responsible on account of mental disorder (NCRMD) for prior offences, appealed a 2019 Ontario Review Board disposition that continued his conditional discharge and imposed new alcohol and drug testing requirements.

The appellant argued the Board erred in its application of the significant threat test and provided insufficient reasons.

The Court of Appeal found that the Board's determination that the appellant posed a significant threat was not supported by the evidence and lacked proper analysis regarding the degree of risk or gravity of apprehended harm.

The court emphasized that factors such as lack of insight, potential medication non-compliance, or substance abuse do not automatically establish a significant threat without specific analysis of the risk of serious criminal conduct.

The appeal was allowed, and an absolute discharge was granted, although the issue was rendered moot by a subsequent 2020 Board decision granting an absolute discharge.

The appellant, found not criminally responsible (NCR) for past offences, appealed the Ontario Review Board's (ORB) disposition continuing his detention order.

The appellant sought a conditional discharge.

The Court of Appeal found the ORB's decision unreasonable, citing errors in assessing the appellant's community stay, failing to inquire into the hospital's COVID-related assessment cessation, dismissing housing offers as unprofessional, and relying on speculative rapid decompensation.

The court emphasized the "least onerous and least restrictive" principle.

The appeal was allowed, and a conditional discharge with specific conditions was ordered.

The applicant, who was found not criminally responsible, objected to the Ontario Review Board holding her annual disposition review hearing by videoconference during the COVID-19 pandemic.

The Board ruled it had the authority to proceed by videoconference without her consent and over her objections.

The applicant sought a writ of certiorari to quash the ruling.

The Superior Court of Justice granted the application, finding that under section 672.5(13) of the Criminal Code, the Board may only hold a hearing by videoconference if the accused consents, and therefore the Board exceeded its jurisdiction.

The appellant, who was found not criminally responsible, appealed a disposition of the Ontario Review Board continuing his detention and a decision that a temporary hold on his indirectly supervised community passes did not constitute a significant restriction of liberty requiring a mandatory hearing.

The Court of Appeal dismissed the appeal, finding that the Board reasonably concluded the appellant's continued detention was the least onerous and least restrictive disposition given his recent decompensation.

The Court also upheld the Board's application of the Campbell framework, agreeing that the temporary restriction on privileges was a day-to-day clinical management decision that did not meet the threshold of a significant increase in liberty restrictions.