Trevor Stephen Fisher

The appellant appealed the dismissal of his challenge to his involuntary status and incapacity finding by the Consent and Capacity Board, arguing abuse of process due to alleged illegal detention and recertification after initial Board decisions in his favour.

The Court of Appeal dismissed the appeal, finding no abuse of process or res judicata, as new evidence of the appellant's deteriorating condition and previously unconsidered criteria justified the subsequent certification process.

The court emphasized the flexibility of the abuse of process concept in administrative proceedings and the importance of considering all circumstances, especially new and significant evidence, when determining capacity and involuntary status under the Mental Health Act.

The appellant, JJ, appealed two decisions of the Consent and Capacity Board (the "Board") that confirmed his involuntary status and incapacity to consent to antipsychotic medication.

JJ argued that the Board erred in its capacity finding and in confirming his involuntary status, and that the repeated certification process constituted an abuse of process and res judicata.

The court applied an appellate standard of review (correctness for law, palpable and overriding error for fact/mixed fact and law).

The court found no palpable and overriding error in the Board's findings regarding JJ's incapacity to appreciate the consequences of his treatment decisions or in confirming his involuntary status under the Mental Health Act's "Box B" criteria.

The court also found no error in the Board's decision not to exercise its discretion to find an abuse of process, noting that the merits of the Box B criteria had not been previously tested and there were intervening events of deterioration.

The appeal was dismissed.

The plaintiff brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $1,000 to the Homewood defendants and $1,000 to the defendant doctor.

This is an appeal from an Associate Judge's interlocutory order dismissing a motion to extend discovery time limits in a simplified procedure action and to examine non-parties.

The Associate Judge had concluded she lacked discretion to extend time under Rule 76.04(2) of the Rules of Civil Procedure.

The appellate court found that the Associate Judge erred in this conclusion, holding that general rules (such as Rule 3.02) allow for extension of time limits in simplified procedure actions unless explicitly exempted.

The court set aside the order dismissing the appellants' motion and dismissed the respondent's cross-appeal regarding costs and examination of non-parties.

The matter was remitted to the Associate Judge for further orders consistent with the finding of discretion.

Dr. Omoseni, the treating physician, brought a motion under s. 19(1) of the Health Care Consent Act for an order to administer intravenous anti-psychotic medication to R.E. (a 60-year-old patient with a history of psychotic illness) pending the final resolution of R.E.'s appeal of a Consent and Capacity Board decision.

The Board had confirmed R.E.'s involuntary status and incapacity to consent to treatment.

The court considered the four criteria under s. 19(2) of the Act: likelihood of substantial improvement/prevention of deterioration, benefit outweighing harm, least restrictive/intrusive treatment, and necessity of treatment before appeal resolution.

While the first two criteria were met, and the third was less certain but leaning towards met, the court found that it was not necessary to administer the treatment before the appeal, which was only 22 days away.

The motion was dismissed, emphasizing the profound infringement on a patient's rights when forced treatment is ordered.

The appellant appealed a decision of the Consent and Capacity Board confirming that he lacked capacity to consent to treatment for a mental disorder under the Health Care Consent Act.

The Board found the appellant incapable of consenting to treatment due to delusional beliefs preventing appreciation of the reasonably foreseeable consequences of refusing medication.

The court held that the Board’s finding of incapacity with respect to anti‑psychotic medication and related side‑effect medication was reasonable and supported by the evidence.

However, the evidentiary record contained insufficient information regarding benzodiazepines and cholinergic medication.

The appeal was therefore allowed in part and the matter remitted to the Board for a rehearing on those medications before a differently constituted panel.

The defendant brought a motion to strike the statement of claim and dismiss the action.

Subsequently, the self-represented plaintiff filed a notice of discontinuance before the close of pleadings, arguing this terminated the action and precluded the defendant's motion.

The court held that the defendant's right to proceed with the motion to dismiss was not abrogated by the subsequent notice of discontinuance, as ignoring this principle would prejudice the defendant by allowing the plaintiff to potentially re-institute the action.

The court allowed the defendant's motion to proceed.

The defendants moved to strike an overlong and prolix statement of claim arising from an alleged failure to treat a child, a report to child protection authorities, and alleged defamation in medical records and related reporting.

The self-represented plaintiff sought to strike counsel's supporting affidavit and to dismiss the hospital's parallel motion on procedural grounds.

The court rejected those procedural objections, holding that an affidavit sworn by a lawyer in the same firm was not improper on these facts and that the hospital's filing deficiencies were mere irregularities.

Applying Rule 25.11, the court found the pleading so filled with evidence, argument, and unnecessary verbatim conversations that the offending portions could not practicably be severed.

The entire statement of claim was struck with leave to file a Fresh as Amended statement of claim within 30 days.

The defendant physicians and hospitals brought a motion to dismiss the plaintiffs' medical negligence action for delay under Rule 24.01(1).

The action, commenced in 2001 following the death of the plaintiffs' family member, had proceeded at a glacial pace primarily due to the plaintiffs' difficulties in obtaining expert medical reports.

The court dismissed the motion, finding that while the delay was lengthy and the plaintiffs were wholly responsible, it was not intentional or contumelious.

Furthermore, the presumption of prejudice was rebutted as the necessary medical records were preserved and the case would largely rely on those records and expert opinions rather than witness memory.

Following unsuccessful defence motions seeking dismissal of a long‑standing medical malpractice action for delay, the parties made submissions regarding costs.

Although the plaintiffs succeeded in resisting dismissal, the court found they had demonstrated a persistent lack of diligence in prosecuting the claim, which had been outstanding for over 12 years.

The defendants had established inordinate and inexcusable delay but failed to prove prejudice sufficient to justify dismissal.

In exercising discretion under section 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court concluded the defendants had reasonably brought the motions in light of the plaintiffs’ conduct.

Accordingly, the court declined to award costs to either party.

The defendants in a personal injury action brought a motion under Rule 30.06 to compel the plaintiff to produce all post-accident vacation photographs and all content on the private portion of her Facebook account.

The plaintiff claimed loss of enjoyment of life.

The court reviewed the photographs and found they only showed the plaintiff sightseeing, which she admitted she could do, and thus were not relevant to her physical limitations.

The court also held that the request for the entire private Facebook account was a fishing expedition and shockingly intrusive, akin to asking for all personal letters.

The motion was dismissed.

The defendants brought motions to dismiss a medical negligence action for delay after the matter had remained unresolved for more than twelve years and had been struck from the trial list without restoration.

The court found that the delay was both inordinate and largely inexcusable, identifying several extended periods where the plaintiffs failed to advance the litigation with diligence.

However, the defendants did not establish actual prejudice and the plaintiffs successfully rebutted the presumption of prejudice by demonstrating that contemporaneous medical records and discovery transcripts remained available to refresh witnesses’ recollections.

Because the evidence did not establish a substantial risk that a fair trial was no longer possible, the court declined to impose the severe remedy of dismissal for delay.

The motions were dismissed but the court warned that further delay could justify a renewed motion.