Health Law - ODC

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 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 parents, who are Jehovah's Witnesses, sought leave to appeal an interlocutory order granting temporary care and custody of their premature child to the children's aid society.

The order was made to facilitate an emergency blood transfusion which the parents had refused on religious grounds.

The parents argued they were denied procedural fairness and their Charter rights were violated due to short notice and lack of counsel at the emergency teleconference hearing.

The Divisional Court denied leave to appeal, finding that the parents received a fair hearing attenuated to the urgent medical circumstances, and that the issues were highly fact-specific rather than of general public importance.

The defendant appealed an order dismissing its motion to strike the plaintiffs' statement of claim.

The plaintiffs sued the provincial government in negligence after the deceased contracted West Nile Virus, alleging the government failed to reasonably implement its prevention plan.

The Divisional Court upheld the motion judge's finding that it was not plain and obvious the claim would fail, as the relevant public health legislation conferred sufficient powers on the government to potentially ground a private law duty of care at the operational level.

The appeal was dismissed.

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 appellant physician appealed a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario finding him guilty of professional misconduct and revoking his license.

The appellant had provided expensive, unproven alternative treatments to vulnerable, terminally ill cancer patients, misrepresenting the efficacy of the treatments and charging excessive fees.

The Divisional Court applied the reasonableness standard of review and upheld the Committee's findings on credibility, misrepresentation, conflict of interest, and excessive fees.

The Court also upheld the penalty of revocation, finding it appropriate given the appellant's exploitation of vulnerable patients.

The College of Physicians and Surgeons of Ontario sought judicial review of an interlocutory order made by its Discipline Committee.

The Committee had ordered the production of confidential third-party medical and counselling records relating to several complainants who alleged sexual abuse by the respondent physician.

The Divisional Court dismissed the application, finding that the Committee reasonably applied the principles from R. v. Mills by analogy to balance the physician's right to make full answer and defence against the complainants' privacy rights.

The Court upheld the disclosure orders for four of the five complainants.

The appellant, a registered practical nurse, appealed a finding of professional misconduct by the Discipline Committee of the College of Nurses of Ontario.

The Committee found that the appellant yelled at a cognitively impaired client and forced her to clean up her own faeces.

The appeal was based on the Committee's credibility findings and its refusal to re-open the hearing.

The Divisional Court dismissed the appeal, holding that there was no palpable and overriding error in the credibility findings and no error in refusing to re-open the hearing.

The applicants sought an interim order restraining the Minister of Health from approving plans for the involvement of for-profit corporations in the design or operation of two hospitals, pending the adjournment of their application for judicial review.

The Divisional Court dismissed the motion, finding that the applicants failed to establish a strong prima facie case that the projects would breach the Public Hospitals Act, and failed to show irreparable harm if the interim order was not granted.

The Crown sought leave to appeal an interlocutory order that refused to strike out portions of the plaintiffs' statement of claim.

The plaintiffs alleged that the infant plaintiff's death in a hospital was caused by overcrowded conditions resulting from the funding and restructuring decisions of the former Premier and Health Minister.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision regarding the claims of negligence and abuse of public office.

The court also found that the motion judge's approach conflicted with Supreme Court of Canada jurisprudence on the duty of care owed by public authorities, and that the issues raised were of significant public importance.

The applicant, a non-profit organization providing services to developmentally disabled individuals, sought judicial review of the Ministry's decision to terminate its funding without notice and direct another agency to take over its operations and property.

The Ministry cited a loss of confidence following several 'serious occurrences'.

The Divisional Court held that the Ministry's actions constituted the exercise of a statutory power subject to judicial review.

The Court found the decision to be illegal, patently unreasonable, and a breach of the duty of fairness, as the Ministry failed to obtain the required Order in Council to seize the property and failed to provide the applicant with fair warning or an opportunity to respond.

The application was granted, and the Ministry was ordered to restore funding and return management to the applicant.

The appellant physician appealed a disciplinary decision of the College of Physicians and Surgeons of Ontario.

In this partial dissent, Greer J. disagreed with the majority's decision to uphold the Complaints Committee's finding of incompetence.

Greer J. concluded that while the physician may have been negligent or shown a serious lack of judgment regarding record-keeping and boundary issues, his conduct did not meet the statutory definition of incompetence under the Regulated Health Professions Act, 1991, as there was no evidence he was unfit to continue practicing.

The Crown sought leave to appeal an interlocutory order that required it to continue funding Intensive Behavioural Intervention (IBI) therapy for a six-year-old autistic child, despite the program's maximum age limit of six.

The motion judge had granted the mandatory order based on the RJR-MacDonald test, finding that the child would suffer irreparable harm without continued treatment and that the balance of convenience favoured the child.

The Divisional Court dismissed the motion for leave to appeal, finding no error in principle in the motion judge's exercise of discretion and rejecting the Crown's argument that the order amounted to a suspension of the legislation.