Health Law - ODC

The appellant hospital appealed an order declaring that the respondent and other 'Annual Members' held their memberships for a full 12-month period and compelling the hospital to hold a requisitioned special meeting.

The hospital argued that under its by-laws, annual memberships expired on July 31 regardless of when they were approved, which in practice resulted in terms of only a few months.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the hospital's interpretation was unreasonable and unfair, and that 'annual' should be given its plain meaning of a full 12-month term to ensure members could effectively act as a check on the board of directors.

The appellant nurse appealed a decision of the Discipline Committee of the College of Nurses of Ontario, which found she committed professional misconduct by financially exploiting a vulnerable psychiatric patient.

The appellant had failed to attend the disciplinary hearing, claiming late disclosure of documents.

The Divisional Court dismissed the appeal, finding that by choosing not to attend the hearing, the appellant waived her right to raise procedural fairness and evidentiary objections.

The court also upheld the penalty, which included revocation of her certificate of registration, a $15,000 fine, and costs, as reasonable given the serious abuse of the nurse-patient relationship.

The self-represented applicant, a former dentist whose license was permanently revoked following disciplinary hearings, applied for judicial review of an earlier interim suspension and sought various other orders against the Royal College of Dental Surgeons of Ontario.

The Divisional Court dismissed the application, finding that the request to review the interim suspension was moot because the applicant's license had already been permanently revoked and all appeals exhausted.

The court also dismissed the applicant's requests for damages, return of patient files, and injunctions, characterizing the claims as vexatious and an abuse of process.

Full indemnity costs of $31,761 were awarded to the College.

The appellant appealed a decision of the Social Benefits Tribunal which upheld the Director's finding that she was not a 'person with a disability' under the Ontario Disability Support Program Act.

The Tribunal found her chronic pain did not amount to a substantial impairment.

The Divisional Court allowed the appeal, finding the Tribunal erred in law by assessing the appellant's condition on her 'good days' rather than her recurrent 'bad days', and failed to make findings on the frequency and unpredictability of her bad days.

The matter was remitted for a fresh hearing.

The College of Physicians and Surgeons of Ontario brought an application regarding an ongoing tribunal hearing involving the Sleep Disorders Centres.

The Divisional Court dismissed the application as premature, finding that no significant harm or breach of natural justice would occur by refusing to decide the issue, especially since the report in question had already been disclosed.

The Court concluded that all related issues should be determined by the tribunal based on a full and complete record.

The appellant, suffering from liver cancer, was denied a liver transplant in Ontario as he did not meet the medical criteria.

He obtained a living-related liver transplant in England for $450,000 and sought reimbursement from OHIP.

OHIP denied the claim because the treatment was not 'generally accepted in Ontario as appropriate for a person in the same medical circumstances' under s. 28.4(2) of Regulation 552.

The Health Services Appeal and Review Board upheld the denial.

On appeal, the Divisional Court dismissed the appeal, finding the Board's decision reasonable and concluding that the Regulation did not violate s. 7 of the Charter because the state's refusal to fund out-of-country treatment did not constitute a deprivation of life or security of the person.

The appellant chiropractor appealed a preliminary decision of the Health Services Appeal and Review Board (HSARB) that struck out certain grounds of appeal regarding an OHIP billing audit.

The Divisional Court dismissed the appeal as premature, holding that administrative proceedings should not be fragmented and the appellant could raise the issues after a final decision on the merits.

The applicant physician sought a stay of a hospital board's decision to revoke his privileges pending an appeal to the Health Professions Appeal and Review Board.

The court held that the Statutory Powers Procedure Act did not apply to automatically stay the decision, as the hospital's by-laws requiring a hearing did not constitute a hearing 'required by law' under the Act.

However, the court granted a common law stay under section 106 of the Courts of Justice Act, finding that the applicant satisfied the RJR-MacDonald test for an interlocutory stay.

The applicant nurse sought judicial review of the College of Nurses' acquisition of her occupational health and safety records from her former employer without her consent.

The employer had terminated the applicant for cause and reported incidents of professional misconduct to the College.

The Divisional Court dismissed the application, finding that while the records constituted personal health information under the Personal Health Information Protection Act, the Act expressly permitted their disclosure to the College for regulatory purposes.

Furthermore, the College's investigator had broad statutory authority under the Health Professions Procedural Code to request and examine the records.

The Health Professions Appeal and Review Board brought a motion to file portions of the record in a sealed form pending a judicial review application by a physician.

The physician sought judicial review of the Board's decisions affirming cautions against him, arguing the Board failed to make full disclosure of the materials it relied upon.

The court granted the motion, finding that unsealing the records prematurely would render the judicial review application moot, as the right to keep the information secret was the very issue to be determined by the full panel.

The appellants appealed a Master's order granting summary judgment and dismissing their medical malpractice action.

The action arose from the death of the appellant's wife following delayed surgical intervention for a ruptured aortic valve.

The Divisional Court upheld the Master's decision, finding that while the appellants presented some expert evidence of a lost chance of survival, they failed to provide evidence establishing on a balance of probabilities that the death would have been avoided with prompt surgery.

The appeal was dismissed.

Apotex Inc. sought judicial review of the Respondents' decision to remove the designation of its generic drug, Apo-Flavoxate, as an interchangeable drug product under the Drug Interchangeability and Dispensing Fee Act (DIDFA) and to delist it from the Comparative Drug Index.

The Divisional Court found that the decision to delist the drug under DIDFA was not rationally connected to the decision to delist it as an eligible benefit under the Ontario Drug Benefit Act.

The majority held that the circumstances surrounding the decision constituted a denial of natural justice and quashed the regulation, restoring the drug's interchangeable status.

A dissenting opinion would have upheld the decision as a valid exercise of public interest discretion.

The applicants sought judicial review of a decision by the General Manager of OHIP refusing to pay medical accounts submitted more than six months after services were rendered.

The applicants argued that the delay, caused by the incompetence of their office manager, constituted 'extenuating circumstances' under the Health Insurance Act.

The Divisional Court applied the reasonableness standard of review and upheld the General Manager's decision, finding it reasonable to distinguish between catastrophic events beyond a physician's control and administrative or operational errors within their control.

The applicants, litigation guardians for severely developmentally delayed adults residing in Schedule I facilities, sought judicial review of the Minister of Community and Social Services' decision to close the remaining institutions.

The applicants argued the Minister lacked statutory authority under the Developmental Services Act to close the facilities.

The Divisional Court held that the Minister's broad discretionary power to establish and maintain facilities included the power to close them.

However, the Court declared that the consent of the incapable residents' substitute decision makers is required before they can be transferred to community placements, invoking the parens patriae jurisdiction to protect their fundamental interests.

The appellant sought to amend his appeal to the Divisional Court to include a section 7 Charter challenge against OHIP's refusal to fund his out-of-country liver transplant.

The Charter issue was not raised before the Health Services Appeal and Review Board.

Applying the prerequisites from R. v. Brown, the court allowed the amendment, finding a sufficient evidentiary record, no tactical delay, and that refusing the amendment could result in a miscarriage of justice, particularly given recent Supreme Court jurisprudence in Chaoulli and legislative changes preventing the Board from hearing constitutional issues.

The defendant doctor moved for leave to appeal two interlocutory decisions dismissing his motion for summary judgment in a medical malpractice action.

The motions judge had allowed the plaintiff to file a late affidavit without complying with language requirements and had dismissed the summary judgment motion despite the plaintiff failing to file any expert medical report.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the orders and that the proposed appeal involved matters of importance, including the necessity of expert evidence in medical malpractice cases and the application of the limitation period.

The College of Nurses of Ontario appealed an order of the Fitness to Practise Committee regarding the respondent nurse.

The Divisional Court allowed the appeal, finding that the Committee failed to fully consider the uncontroverted evidence of an addiction medicine specialist who assessed the respondent.

The Court set aside the Committee's order, declared the respondent 'incapacitated' under the Health Professions Procedural Code, and remitted the matter to the Committee to determine the appropriate order.

The College of Physicians and Surgeons of Ontario brought a motion to lift a stay of the revocation of a physician's certificate of registration.

The stay had been granted pending the physician's appeal of a disciplinary finding of sexual abuse involving a patient with whom he had a long-term common-law relationship.

The College argued that a recent appellate decision upholding the mandatory revocation provisions eliminated any serious issue to be tried.

The court dismissed the motion, finding that the physician raised distinct constitutional and factual issues regarding the spousal exception and retroactive punishment, and that the balance of convenience continued to favour maintaining the stay.

The applicant dentist sought judicial review of a decision by the Health Professions Appeal and Review Board, which upheld a Complaints Committee decision requiring him to be cautioned.

The Committee found the applicant failed to obtain informed consent before treating an elderly patient with Alzheimer's disease, having instead obtained a signature from the patient's son after treatment was largely complete, despite the existence of a Power of Attorney for Personal Care held by the patient's daughter.

The Divisional Court dismissed the application, finding that the Board and Committee were entirely reasonable in concluding that the circumstances required the applicant to be vigilant in obtaining informed consent from the proper person.

The applicant, a medical director, sought judicial review of a decision by the Health Professions Appeal and Review Board requiring him to attend before the Complaints Committee to be cautioned about using unqualified practitioners for Independent Medical Examinations.

The applicant argued a lack of procedural fairness and that the decision was patently unreasonable.

The Divisional Court dismissed the application, finding that the procedural fairness issues were not raised before the Board and that the Board had an evidentiary basis for its conclusions.