Cases
Representative Work: Representing forensic psychiatric facilities before the Ontario Review Board
on appeals of those decisions at the Court of Appeal.
Re Chaudry, 2015 ONCA 317, 125 O.R. (3d) 641 (C.A.) - Represented the Appellant Person in Charge of an Ontario forensic psychiatric facility in an appeal of an Ontario Review Board Disposition which had awarded costs against the Hospital, on its motion
without notice to the parties, as a remedy for an alleged violation of the patient's Charter rights. The appeal was allowed
the Hospital's view prevailed on all issues before the Court, namely that the Board erred in finding that the Hospital had violated the patient's Charter rights
the Board erred when it assumed jurisdiction to award costs as a remedy for a Charter breach
the Board erred by awarding costs on its motion, without providing notice to the Hospital. In these circumstances, the Court held that the forensic facility was a person to whom the Board owed a duty of procedural fairness.
Re Kachkar (2014 ONCA 250) - Represented the respondent Person in Charge of an Ontario forensic psychiatric facility in an appeal of an Ontario Review Board disposition brought by the Crown
included successful motion brought by the Person in Charge to adduce additional evidence. Available on line.
Re Tyrell (2013 ONCA 170) - Represented the appellant Person in Charge of an Ontario forensic psychiatric facility in a successful appeal of an Ontario Review Board disposition which had absolutely discharged the respondent accused
included a successful motion brought by the Person in Charge to adduce additional evidence.
Re MacLean (2012 ONCA 909) - Represented the respondent Person in Charge of an Ontario forensic psychiatric facility in an appeal brought by the patient of an Ontario Review Board disposition
the appeal was dismissed.
Ontario Shores Centre for Mental Health Sciences v. Darch, 2010 ONCA 36 (CanLII) - Represented the Person in Charge on the successful appeal of an absolute discharge issued by the Ontario Review Board.
Representing healthcare providers before the Consent
Capacity Board ( CCB )
on appeals of those decisions, including reviews of findings of incapacity, involuntary
informal admissions, substitute decision-making, Community Treatment Orders
admissions to long-term care facilities: L.A. v Waisman, 2016 ONSC 6514 - Represented the respondent physician in an appeal of a CCB decision that confirmed the physician's finding that the patient was incapable with respect to treatment with anti-psychotic
ancillary side effect medications. The finding of incapacity turned on the appellant's inability to recognize the possibility that he may be affected by a major mental illness
by its manifestations. The Court dismissed the appeal, finding that the Board did not err in concluding that the appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
D.P. v Pichette, 2016 ONSC 6238 - Represented the respondent physician in an appeal of a CCB decision that confirmed that the criteria for issuing a Community Treatment Order ( CTO ) in respect of the appellant were met at the time of the hearing. The appellant argued that there had been a breach of procedural fairness when the Board confirmed the CTO without considering whether the physician had demonstrated that there was a valid statutory purpose to the CTO, as described in section 331.(3) of the Mental Health Act, in particular, by curtailing his cross-examination of the respondent on this issue. The Court dismissed the patient's appeal, finding that the Board's jurisdiction on the review of a CTO is set out in section 39(6) of the Act, which is to confirm whether the criteria set out in section 33.1(4) are met. The Court held that if section 33.1(3) (the purposes section) were anything more than a helpful guideline , it would have been written into subsection 33.1(4) as one of the criteria to be met.
M.I. v Guimond, 2016 ONSC 5533 - Represented the respondent physician in an appeal of a CCB decision that confirmed the physician's finding that the patient was incapable with respect to treatment with anti-psychotic medications. In this appeal, the appellant argued that the Board's decision was unreasonable as the respondent physician has failed to perform a proper assessment of the patient's capacity
further, failed to provide him with sufficient treatment-related information. In addition, the appellant argued that the CCB mis-applied the test for capacity as set out in section 4 of the Health Care Consent Act. The Court dismissed the appeal, finding that the respondent physician, who had a lengthy treating relationship with the appellant, was able to assess the patient in the context of that history, as observations of the appellant's current condition would be compared
contrasted to past observations. In particular, the Court found that the process of assessing capacity does not require a physician to disregard prior experience
observations, so long as the assessment is of the present condition of the patient. In addition, the Court concluded that the Board had not mis-applied the statutory test.
A.J. v Tugg, 2016 ONSC 5533 - Represented the respondent physician in an appeal of a CCB decision confirming a finding that the appellant was incapable of consenting to treatment with antipsychotic medication. The appellant argued that the respondent physician had not sufficiently explained the benefits of treatment
therefore the Board could not reasonably conclude that patient was unable to appreciate reasonable foreseeable risks
benefits of treatment (the second branch of the test for capacity). The Court dismissed the appeal finding that there was ample evidence before the Board that the appellant did not satisfy the second branch of the test of capacity to consent to treatment. There was evidence that the appellant did not recognize the possibility that he was affected by a mental condition
therefore, could not appreciate the reasonable foreseeable consequences of a treatment decision. The conclusion of the Board was was within a range of reasonable outcomes
should not be overturned.
M.R. v Wong, 2016 ONCA 540 - Represented the respondent physician in an appeal of a Superior Court Decision to the Court of Appeal. The Superior Court had quashed the Appellant's appeal of a CCB decision that he was incapable with respect to treatment on the grounds that the appeal was moot. The respondent physician had brought a motion to quash the appeal based on fresh evidence, which the lower court had admitted, that established that several months after the CCB decision,
before the appeal of the CCB decision was heard, the respondent physician had determined that the appellant had regained his capacity to consent to treatment
had consented to the very treatment that was the subject of the CCB's decision. Further, following the resumption of treatment, the appellant had been discharged from the respondent's care when he was transferred to another psychiatric facility, pursuant to a disposition of the Ontario Review Board. The Court of Appeal confirmed that the Superior Court had correctly applied the two-step test to determine whether a dispute is moot, as set out by the Supreme Court of Canada in Borowski v. Canada. Namely, there was no longer a live issue between the parties as the appellant's capacity to consent to treatment had been restored
secondly, the court chose not to exercise its discretion to hear a moot appeal. On appeal to the Court of Appeal, the appellant argued that the lower court judge erred by neglecting, in the exercise of his discretion, to apply st
ards that would be appropriate for mental health litigants
by failing to recognize that the appeal raised an issue of public importance. The Court of Appeal disagreed with both arguments
dismissed the appeal.
D.L. v Younker, Superior Court Endorsement, July 20, 2016 - Represented the respondent physician in an appeal of a CCB decision confirming the criteria for issuing a Community Treatment Order ( CTO ) were met
the physician's finding that the patient was incapable with respect to treatment decisions. The Court dismissed the appeals finding that decision to confirm the CTO
Dr. Younker's finding of incapacity were reasonable
supported by the evidence.
R.J. v Zalan, 2016 ONSC 2337 - Represented the respondent physician in an appeal of a Consent
Capacity Board decision which confirmed her involuntary admission as a patient at a psychiatric facility
the respondent physician's determination that she was not capable of consent to treatment with antipsychotic medication. The Court dismissed the patient's appeal
found that despite some errors in the original involuntary committal form, the Board's decision that RJ was legally admitted as an involuntary patient was reasonable. The errors were trifling
did not affect the substance of the form. Further the Board's decision to confirm the patient's incapacity to consent to treatment was reasonable.
K.M. v. Shammi, 2012 ONSC 1102 (CanLII) - Represented the respondent physician on an appeal brought by a patient of the decision of the Consent
Capacity Board confirming the physician's finding that the patient was incapable with respect to treatment
following the initiation of her appeal, the patient was discharged from the hospital
was no longer under the care of the respondent physician
the court accepted the respondent physician's argument that the appeal was therefore moot.
Re L.A., 2012 CanLII 26786 (ON CCB) Represented the respondent physician, in a review of a patient's involuntary admission.
Re F, 2009 CanLII 53019 (ON CCB) - Represented the moving physician, who had applied to the Board for directions with respect to proposed electro-convulsive therapy
psychiatric pharmacological treatment, in a patient suffering from severe bipolar disorder. At issue was whether a prior wish with respect to some of the treatment was a prior capable wish applicable in the circumstances. The finding of incapacity was confirmed
the Board also found that the prior wish was not a prior capable wish.
S.M.T. v. Abouelnasr, 2008 CanLII 14550 (ON SC) - Represented the respondent physician in an appeal of a decision of the Consent
Capacity Board, which had confirmed the attending physician's finding that Mr. T was incapable with respect to treatment
that he met the criteria for an involuntary admission. Mr. T also alleged that certain provisions of the Health Care Consent Act violated his rights under sections 7, 12
15 of the Canadian Charter of Rights
Freedoms, as Mr. T required restraint in order for treatment to be administered. The appeal was dismissed.
Re B.S., 2008 CanLII 21885 (ON CCB), represented the respondent evaluators in application brought by the patient to review the evaluators' finding that she was incapable with respect to admission to a long term care facility
the Board confirmed the evaluators finding.
Defending hospital
hospital staff in civil litigation at all levels of court in Ontario, including allegations of Charter of Rights violations.
Doucette v. Medical Officer of Health, 2011 ONSC 5774 - Represented the respondent hospital on an application brought by a patient for a writ of habeas corpus
for remedies under section 7 of the Canadian Charter of Rights
Freedoms, in relation to her detention at the hospital pursuant to an order made by the Medical Officer of Health under the Health Protection
Promotion Act.
B.(C.) v. Sawadsky, 82 O.R. (3d) 661 (2006, C.A.) - The plaintiff was taken to the defendant hospital by police officers acting under the authority of a Form 2 under s. 16 of the Mental Health Act. The plaintiff was detained under a Form 1 for further assessment, following which she was released. The plaintiff brought an action against the hospital
the first doctor to examine her, claiming damages for false imprisonment
violation of her rights under sections 8,9
10 of the Canadian Charter of Rights
Freedoms. At trial, the action was dismissed by Karakatsanis J. (as she then was) of the Superior Court of Justice, [2005] O.J. No. 3682 (S.C.J.). The plaintiff's appeal was dismissed by the Ontario Court of Appeal. Leave to appeal to the Supreme Court of Canada was dismissed, 2007 CanLII 10546 (SCC).
Representing an intervenor in the Starson v. Swayze appeal before the Supreme Court of Canada.
Representing healthcare professionals before College Complaints Committees
the Health Professions Appeal
Review Board.
Representing hospital clients, non-profit corporations
healthcare professionals before Coroner's Inquests
public inquiries.
Providing general advice to hospitals on hospital protocols
policies dealing with a wide variety of medico-legal
governance issues.
