Health Law - OCA

An appeal from a Superior Court decision dismissing an appeal from a Consent and Capacity Board decision.

The appellant challenged a finding of incapacity to consent to antipsychotic medication treatment.

The appellant and amicus curiae argued that the appellant was denied statutory rights advice and that the evidence did not support the incapacity finding.

The Court of Appeal upheld the Board's decision, finding that the appellant received proper rights advice as required by statute, that no additional rights advice obligation arose when the appellant later expressed intent to apply to the Board, and that the Board's finding of incapacity was supported by evidence and involved no palpable and overriding error.

An appeal under Part XX.1 of the Criminal Code from an Ontario Review Board disposition order dated December 13, 2024.

The appellant sought a conditional discharge or, alternatively, authorization for 14-day travel passes to the United States.

The Board maintained a detention order requiring continued residence at the Centre for Addiction and Mental Health with community housing privileges and extended Canadian travel passes to 14 days.

The Court of Appeal upheld the Board's decision, finding no error in law and that the disposition was reasonable and not a miscarriage of justice.

The appellant, M.R., appealed from a Superior Court order upholding the Consent and Capacity Board’s finding that he lacked capacity to consent to treatment.

The respondent, Dr. Achal Mishra, moved to adduce fresh evidence showing that M.R. was found capable of consenting to treatment in July 2024 and has maintained capacity since.

The Court of Appeal found the appeal to be moot, as there was no longer a live issue, and dismissed the appeal, admitting the fresh evidence and making no order as to costs.

The applicant, Songfu Liu, sought an extension of time to appeal the dismissal of his medical malpractice action against Dr. Jonathan Chan.

The original action alleged fraud and misrepresentation regarding a prostate cancer diagnosis and subsequent surgery.

The motion judge had dismissed the applicant's claims, finding no evidence of fraud and that the applicant's own expert supported the respondent's medical care.

The Court of Appeal dismissed the motion for an extension of time, finding that while the delay was short and excusable (due to a common self-represented litigant's mistake about appeal period commencement), the proposed appeal was entirely devoid of merit, seeking to re-argue factual findings without identifying legal errors.

The court emphasized that the "justice of the case" required an end to the unfounded allegations.

The appellant, Trae Worrie, appealed his convictions for second-degree murder and attempted murder, arguing he was Not Criminally Responsible (NCR) due to mental disorder.

Two forensic psychiatrists unanimously opined he was NCR, but the trial judge rejected this defense, finding him guilty.

The Court of Appeal found that the trial judge materially misapprehended expert evidence, particularly concerning a psychologist's testimony, and misused the appellant's after-the-fact conduct.

The court concluded there was no rational basis to reject the unanimous expert opinion that the appellant was NCR.

The appeal was allowed, convictions set aside, and a verdict of NCR was substituted.

The Court of Appeal for Ontario allowed an appeal in a medical negligence action, ordering a new trial.

The plaintiffs alleged delayed diagnosis of hydrocephalus in their child, leading to brain damage.

The trial jury found no breach of standard of care.

The appellate court found that the defendants' expert witness exceeded his role by opining on the credibility and reliability of the parties, thereby breaching his duty of independence.

The trial judge erred by not specifically instructing the jury to disregard these improper opinions and by failing to exclude them.

Despite the appellants' counsel not objecting at trial, the errors constituted a substantial wrong or miscarriage of justice, tainting the jury's verdict and warranting a new trial.

The plaintiffs commenced a medical malpractice action after a relative's death, which the defendants argued was statute-barred under the Trustee Act.

The plaintiffs pleaded fraudulent concealment of CT imaging to toll the limitation period.

The motion judge dismissed the negligence claims, finding no causal connection between the concealed imaging and the failure to sue within the limitation period, but allowed breach of contract and PHIPA claims against the hospital to continue.

The Court of Appeal allowed the plaintiffs' appeal, holding that the motion judge erred by deciding the factual question of fraudulent concealment as a question of law under Rule 21.01(1)(a).

The Court found the plea of fraudulent concealment was neither patently ridiculous nor manifestly incapable of proof, and that factual disputes regarding causation should not be determined on such a motion.

The appellant, found not criminally responsible on account of mental disorder (NCRMD), appealed a disposition of the Ontario Review Board that directed his detention at a forensic psychiatric program.

The appellant sought an absolute discharge, while the Hospital and Crown supported continued detention.

Duty counsel argued the Board erred by not giving meaningful consideration to a conditional discharge, suggesting the decision was based on hospital convenience.

The Court of Appeal dismissed the appeal, finding that the Board's conclusion was not solely based on convenience but on a reasoned assessment that a detention order was the least onerous and restrictive disposition, necessary for the ability to quickly return the appellant to hospital if he decompensated and to approve his accommodation given his fluctuating insight into substance use and its impact on mental health.

Ara Koundakjian appealed an Ontario Review Board disposition ordering his detention at the Centre for Addiction and Mental Health, having sought a conditional discharge.

The appellant argued the Board misstated the governing legal test by using "appropriate" instead of "necessary and appropriate" and failed to meaningfully consider a conditional discharge.

The Court of Appeal dismissed the appeal, finding that the Board understood the correct standard despite the shorthand, and that its determination of continued detention was reasonable and entitled to deference given the appellant's history of mental illness, substance abuse (cocaine), lack of insight, frequent breaches of disposition conditions, and the significant risk of serious harm to the public.

An appeal under Part XX.1 of the Criminal Code against the Ontario Review Board's disposition dated February 4, 2019, ordering continued detention in the General Forensic Unit at the Centre for Addiction and Mental Health.

The appellant sought an absolute discharge or, alternatively, an independent assessment of his treatment plan and risk with an early hearing date.

The Court of Appeal dismissed the appeal, finding the Board's determination that the appellant continues to meet the threshold for significant threat was amply justified.

However, the court expressed concern that no concrete plan for community reintegration had been established as previously directed.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated July 16, 2018.

The appellant challenged the Board's finding of a direct connection between his substance abuse and his psychotic state at the time of the index offences, as well as the Board's conclusion that a significant threat to public safety remained.

The Court of Appeal upheld the Board's decision, finding it was reasonable for the Board to rely on the treating psychiatrist's opinion and to impose a conditional discharge given the appellant's progress balanced against ongoing risks.

Appeal of a Divisional Court decision upholding College of Physicians and Surgeons of Ontario policies requiring physicians who object to providing certain medical procedures on religious grounds to provide effective referrals to non-objecting providers.

The appellants, individual physicians and physician organizations, challenged the policies as violating their freedom of conscience and religion under the Canadian Charter of Rights and Freedoms and their equality rights.

The Court of Appeal dismissed the appeal, finding that while the policies infringe freedom of religion, the infringement is justified under s. 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society.

The court emphasized the importance of equitable patient access to health care services, particularly for vulnerable populations, and the role of family physicians as gatekeepers in the health care system.

The appellant appealed a disposition of the Ontario Review Board that maintained a detention order rather than granting a conditional discharge.

The appellant argued that the Board made a palpable and overriding factual error regarding his propensity to decompensate and that the Board failed to adequately consider alternative mechanisms for readmission to hospital.

The Court of Appeal rejected both arguments, finding that the Board's findings were supported by evidence and that the detention order was the least onerous and least restrictive disposition available given the appellant's risk to public safety.

An appeal under Part XX.1 of the Criminal Code against the Ontario Review Board's disposition dated November 16, 2017.

The appellant was found not criminally responsible on account of mental disorder in 2012 for criminal harassment and failure to comply with a recognizance.

The Board found the appellant remained a significant risk to public safety due to his psychotic disorder, active substance use disorder, lack of prosocial behaviour and motivation, and continued use of marijuana despite clinical advice against it.

The Board imposed a conditional discharge with detention order provisions.

The appellant appealed, arguing the Board erred in finding he constituted a significant threat and failed to provide adequate reasons.

The Court of Appeal upheld the Board's decision, finding it reasonable and supported by unanimous opinion of the treatment team.

An appeal from an Ontario Review Board disposition that detained an NCR accused who had been under the Board's jurisdiction for over a decade following a finding of not criminally responsible for criminal harassment and failing to comply with a recognizance.

The Board determined the appellant posed a significant threat to public safety despite fresh evidence from a clinical forensic psychologist indicating low risk on stalking-specific assessment tools.

The Court of Appeal found the Board's decision unreasonable, holding that the evidence fell short of establishing a significant threat to public safety and that the Board had effectively reversed the burden of proof by relying solely on a moderate-risk HCR-20 V3 assessment without proper expert contextualization.

An appellant appealed the Ontario Review Board's disposition continuing his conditional discharge on terms.

The appellant had been found not criminally responsible on account of mental disorder in 2006 for assault causing bodily harm and mischief.

The Board found the appellant remained a significant threat to public safety based on his lack of insight into his mental illness, his unwillingness to take medication absent a Board order, his continued residual symptoms despite medication, his history of marijuana use leading to clinical worsening, and threatening statements made in 2015.

The Court of Appeal upheld the Board's decision, finding the conclusion that a foreseeable and substantial risk existed was reasonable on the evidence.

The appellants brought a motion seeking to appoint the Office of the Public Guardian and Trustee as litigation guardian for one appellant, to require a mental examination, to remove counsel, to extend time to perfect the appeal, and to seal evidence concerning mental health.

The motion judge addressed the sealing and confidentiality issues under the two-part test from Sierra Club v. Canada (Minister of Finance).

The court ordered redaction of solicitor-client communications and certain historical medical information as reasonable alternatives to confidentiality orders.

However, the court declined to grant a confidentiality order for current observations of the appellant's mental state, finding insufficient evidence of necessity under the Sierra Club test.

References to a non-party's health information were also redacted as unnecessary and irrelevant.

The appellant sought an adjournment of his appeal from a Superior Court judgment dated February 16, 2017, regarding an application under the Health Care Consent Act.

The appellant, an involuntary patient at Brampton Civic Hospital, wished to attend the hearing of his appeal.

The respondent did not oppose the adjournment request.

The court granted the adjournment to a date to be fixed.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated February 24, 2017.

The appellant sought a conditional discharge, arguing it was the least onerous and least restrictive disposition necessary to protect the public.

The Court of Appeal upheld the Board's decision to impose a detention order with community living privileges at the discretion of the hospital, finding that the Board reasonably determined this was the least onerous and least restrictive disposition given the appellant's admitted risk to public safety, history of non-compliance with medication, alcohol use, and pattern of rule violations.

The appellant appealed a disposition of the Ontario Review Board ordering his detention on a General Forensic Unit at the Centre for Addiction and Mental Health with the ability to live in community accommodation approved by the person in charge of CAMH.

The Court of Appeal upheld the Board's decision, finding that an absolute discharge was not appropriate given clear evidence that the appellant would stop taking medication, decompensate quickly, and engage in threatening and aggressive behaviour.

The court also rejected the argument that a conditional discharge was the least restrictive appropriate order, finding that the detention order with community living possibilities was reasonable given the appellant's homelessness and ongoing risk of harm.