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.

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.

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 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.