Ontario Court Of Appeal Summaries (August 14-18)

Good afternoon,

This might have been the quietest week at the Ontario Court of Appeal since we started this blog a few years ago. There was only one substantive decision, E.S v. Joannou, 2017 ONCA 655, an administrative law decision. The court determined in that case that the Consent and Capacity Board, which reviews the involuntary admission of patients to mental health facilities or administering of treatment, does not have the jurisdiction to declare any portions of its governing legislation, the Health Care Consent Act or the Mental Health Act, unconstitutional, nor does it have the power to grant a section 24 Charter remedy for breach of any Charter rights. While some administrative tribunals are "courts of competent jurisdiction" for the purposes of applying the Constitution Act, 1982 and the Charter, in this case, the legislature had specifically excluded constitutional jurisdiction in the Board's enabling statute. The patient's remedy for the breach of constitutional rights in such cases is by way of application to the Superior Court rather than to the Board.

Have a great weekend.

John Polyzogopoulos Blaney McMurtry LLP jpolyzogopoulos@blaney.com Tel: 416 593 2953 http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents

Civil Decisions

E.S v. Joannou, 2017 ONCA 655

Keywords: Administrative Law, Constitutional Law, Mental Health Law, Jurisdiction, Consent and Capacity Board, Mootness, Substitute Decisions Act, Mental Health Act, Health Care Consent Act, Notice of Constitutional Question, Courts of Justice Act, s. 109, Canadian Charter of Rights and Freedoms, s. 7, Charter Remedies, s. 24(1), Constitution Act, 1982, s.52(1) (Supremacy of Constitution), R. v. Conway, 2010 SCC 22, R. v. Smith, 2004 SCC 14, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

For Criminal Decisions, click here.

Civil Decisions

E.S v. Joannou, 2017 ONCA 655

[Rouleau, Pepall and Roberts JJ.A.]

Counsel:

K Bryan, for the appellant H Schwartz and P Ryan, for the respondent Attorney General of Ontario P-E Veel and D Glatt, for the respondent Dr. Jason Joannou K R Spector, for the intervener ARCH Disability Law Centre

Keywords: Administrative Law, Constitutional Law, Mental Health Law, Jurisdiction, Consent and Capacity Board, Mootness, Substitute Decisions Act, Mental Health Act, Health Care Consent Act, Notice of Constitutional Question, Courts of Justice Act, s. 109, Canadian Charter of Rights and Freedoms, s. 7, Charter Remedies, s. 24(1), Constitution Act, 1982, s.52(1) (Supremacy of Constitution), R. v. Conway, 2010 SCC 22, R. v. Smith, 2004 SCC 14, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

Facts:

The appellant was admitted to the Centre for Addiction and Mental Health ('CAMH') out of concern for the deterioration of her physical health and mental state. The next day, a Form 3 certificate of involuntary admission, under which a patient is detained for up to two weeks, was issued by a CAMH psychiatrist on the ground that the appellant was refusing to eat due to paranoid thoughts about food.

Two days later, the appellant applied to the Board to...

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