Health Law - OCA

The appellant, J.A., appealed a decision of the Superior Court of Justice upholding a finding by the Consent and Capacity Board that he was incapable of consenting to treatment with antipsychotic medication.

The Court of Appeal found no reversible error in the lower court’s decision, upholding the dismissal of the appellant’s adjournment request and the application of the relevant legal principles regarding capacity and consent.

The appeal was dismissed.

David Grant, found not criminally responsible (NCR) for harassment and breach of peace bond due to bipolar disorder and delusions, appealed the Ontario Review Board's disposition.

The Board denied his request for an absolute discharge, continuing his detention with privileges at a forensic mental health care centre, and imposing contact restrictions.

Grant argued the Board unreasonably found he posed a significant public threat, lacking evidence for a foreseeable and substantial risk of serious criminal offence if discharged.

The Court of Appeal dismissed the appeal, deferring to the Board's expertise and finding its risk assessment reasonable, given Grant's continued delusions, cannabis use exacerbating his condition, and consistent fixation on the victim, concluding he would likely re-engage in criminal behaviour without supervision.

The appellants sought to certify a class proceeding against the provincial government for its response to COVID-19 in long-term care homes, asserting claims in negligence, breach of fiduciary duty, and breach of Charter s. 7.

The motion judge certified the negligence claim against the Minister of Long-Term Care (MLTC) but struck the other claims.

This appeal and cross-appeal challenged that decision.

The Court of Appeal dismissed both the appellants' appeal (seeking to certify the struck claims) and the respondent's cross-appeal (seeking to decertify the negligence claim against the MLTC), thereby upholding the motion judge's original certification decision.

The appellant, found not criminally responsible on account of mental disorder (NCRMD) for manslaughter and robbery, appealed his designation as a high-risk accused (HRA) under s. 672.64(1)(a) of the Criminal Code.

The Court of Appeal reviewed the trial judge's discretionary decision, considering the appellant's extensive history of severe mental disorder, repetitive violent behaviour against strangers, and treatment resistance.

The court found the trial judge's conclusion that there was a substantial likelihood of the appellant using violence that could endanger the life or safety of another person was reasonable and supported by the evidence, and therefore dismissed the appeal.

The appellant, Nathalie Mouralian, brought a motion before the Court of Appeal for the appointment of a "litigation guardian counsel" to assist with her appeal, citing serious mental health challenges and a brain injury.

The motion was dismissed for two reasons: first, the court lacked authority to appoint a "litigation guardian counsel" as the appellant required counsel, not merely a guardian; and second, the medical evidence provided did not establish mental incapacity as required by Rule 7.04(1)(b) of the Rules of Civil Procedure and sections 6 or 45 of the Substitute Decisions Act, 1992.

The appellant appealed a disposition of the Ontario Review Board that ordered his detention in a secure forensic unit, arguing for a hybrid order allowing the hospital discretion over placement.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable given the uncontested evidence that the appellant remained a significant threat to public safety and posed a high risk of absconding.

The appellant, Maxine Donna McLean, appealed the dismissal of her negligence action against Dr. Nikolaj Wolfson.

The action was dismissed by the motion judge due to Dr. McLean's repeated failure to produce medical records (a "recent X-ray" and related diagnoses) as requested and ordered, which were referenced in her Statement of Claim.

The Court of Appeal found that the motion judge properly exercised discretion in dismissing the action, given the ample time provided and lack of reasonable explanation for non-compliance.

The Court also declined to admit fresh evidence on appeal, as it did not correct the deficiencies and was not timely.

Mr. Motuz appealed the Ontario Review Board's disposition refusing an absolute discharge, arguing the Board misapprehended evidence regarding his history and current risk.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable, supported by evidence of his mental illness, lack of insight, stated non-compliance with medication, and continued public safety risk, even if its reasons were brief.

The appellant, found not criminally responsible for criminal harassment in 2005 and 2006, appealed the Ontario Review Board's disposition ordering her detention in a secure forensic unit.

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

The Court of Appeal allowed the appeal and directed the Board to hold an expedited rehearing to consider whether a conditional discharge was the least onerous and restrictive disposition available, in light of fresh evidence that the appellant's sister was prepared to provide housing and community support.

An appeal from the Ontario Review Board's disposition dated July 18, 2018, regarding the detention of an individual with a major mental illness.

The appellant challenged the Board's finding that he continued to pose a significant threat to public safety and that a detention order was necessary.

The Court of Appeal upheld the Board's decision, finding no error in the Board's application of the legal test for assessing ongoing risk or in its determination that detention was the appropriate disposition given the appellant's mental condition, history of non-compliance with medication, substance abuse, and prior violent conduct.

An appellant found not criminally responsible on grounds of mental disorder appealed the Ontario Review Board's disposition placing him on a detention order with removal of an alcohol prohibition condition.

The appellant argued the detention order was more restrictive than his previous conditional discharge and that the Board's objectives could have been achieved through maintaining the conditional discharge while removing only the alcohol prohibition.

The Court of Appeal upheld the Board's decision, finding that when viewed holistically with the privileges and prohibitions included, the detention order was actually less restrictive and was justified to allow implementation of a Community Treatment Order and to manage the appellant's risk to public safety.

The appellants, three physicians who practiced in the respondent hospital's urgent care centre, appealed the dismissal of their wrongful dismissal action.

The trial judge dismissed the claim on the ground that it was barred by section 44(5) of the Public Hospitals Act, which immunizes hospitals from liability for acts done in good faith when a hospital board decides to cease providing a service.

The appellants argued that section 44(5) should not apply based on legislative history and the characterization of their status as dependent contractors.

The Court of Appeal upheld the dismissal, finding that section 44(5) is clear and all-encompassing, barring all proceedings for damages arising from a hospital's decision to cease providing a service, regardless of the legal characterization of the terminated physicians' status.

A pharmacist challenged the Ontario College of Pharmacists' jurisdiction to prosecute discipline charges after the College failed to comply with mandatory statutory timelines for processing a written complaint under section 25 of the Health Professions Procedural Code.

Instead, the College accepted the complainant's withdrawal and proceeded with a registrar-initiated investigation under section 75.

The Divisional Court quashed the charges, finding the College lost jurisdiction through non-compliance.

The Court of Appeal reversed, holding that written complaints may be withdrawn when the College agrees and the matter proceeds through another statutory process with full procedural safeguards.

The court balanced the public interest in regulating the profession against the accused member's fair hearing rights, finding no procedural unfairness or prejudice to the respondent.

An appellant found not criminally responsible on account of mental disorder in 2000 for assault and uttering threats appealed his disposition of detention in a general forensic unit with community living privileges at the discretion of the hospital.

The appellant argued the Board's finding that he continues to pose a significant threat to public safety was unreasonable and sought a conditional discharge.

The Court of Appeal upheld the Board's majority decision, finding the disposition reasonable based on the appellant's persistent pattern of threatening behaviour, impulsivity, inability to control anger, and the structured environment's role in preventing escalation to physical violence.

The appellant, found not criminally responsible on account of mental disorder for offences including break and entry, assault with a weapon, uttering threats, escaping lawful custody, and robbery, appealed the Ontario Review Board's disposition ordering his detention at a forensic mental health facility.

The appellant sought a conditional discharge, arguing the Board unreasonably concluded detention was necessary and improperly considered the risk of illicit drug use and the ease of readmission as factors in its decision.

The Court of Appeal dismissed the appeal, holding that supervision of housing and readmission capability are relevant considerations for the Board in determining appropriate dispositions.

The appellant, a pediatrician, was convicted at trial of sexual assault following a genital examination of a 15-year-old patient during an initial consultation for attention deficit disorder.

The trial judge found that the appellant did not forewarn the patient of the genital examination and did not palpate the patient's testicles, and concluded the touching was gratuitous and for a sexual purpose.

The Court of Appeal found the trial judge misapprehended material evidence regarding the reliability of the complainant's testimony, the significance of the appellant's contemporaneous medical notes, and the expert evidence regarding the medical necessity and appropriateness of the examination.

The court concluded that on a correct apprehension of the evidence, no reasonable trier of fact could find the appellant guilty beyond a reasonable doubt.

An NCR accused appealed a disposition of the Ontario Review Board that found him to be a significant threat to public safety and ordered his continued detention with community living privileges.

The appellant, a 37-year-old with bipolar disorder and a lengthy criminal history, sought an absolute discharge.

The Board's majority relied on evidence that the appellant's marijuana use was potentially linked to hypomanic symptoms and could lead to a full manic episode, during which he might pose a risk of violent behavior.

The Court of Appeal found the Board's conclusion unreasonable, noting that despite a substantial risk of substance abuse and reoffending, the appellant had not committed an act of violence since 2004 and the Board's concerns were speculative and insufficiently grounded in evidence to meet the high threshold for "significant threat to public safety."

An appeal against an Ontario Review Board disposition denying expanded privileges and absolute discharge for an individual found not criminally responsible on a charge of criminal harassment.

The appellant argued the Board failed to conduct a separate and specific analysis of whether his conduct would constitute a serious criminal offence with real risk of physical or psychological harm.

The Court of Appeal dismissed the appeal, finding the Board's reasons demonstrated proper consideration of the seriousness of the offence and the risk to the community.

The Crown appealed a disposition of the Ontario Review Board regarding Bartosz Gajewski, raising two grounds: (1) that a condition allowing indirectly supervised or unaccompanied entry into the community for up to seven days was unreasonable and did not protect public safety, and (2) that the Board's failure to include the victim's father (J.N.) in a 500-metre boundary condition was unreasonable.

The Court of Appeal dismissed the first ground, finding the Board's disposition reasonably supported by the evidence and noting that the Crown had not opposed the condition at the hearing.

The Court allowed the second ground in part, ordering that J.N. be included in the 500-metre boundary condition.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated July 5, 2016.

The appellant challenged the Board's order regarding his detention and conditions.

The Court of Appeal found the appellant's conduct troubling but close to the threshold for satisfying the "significant threat to the safety of the public" requirement.

The Court upheld the Board's order but directed that on the next review, all possibilities including conditional discharge be fully addressed, noting the appellant's prior successful functioning on conditions for approximately four years.