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October 8, 2021

Health Care Consent Act Applications Involving Questions of End of Life Care

For Health Care Consent Act applications that involve a question of end of life care, the following expedited practices will be implemented to facilitate the process and ensure a fair, transparent, and efficient process

  • At this time, all proceedings will be conducted by teleconference or videoconference (ZOOM).
  • Upon receipt of an application the parties will be contacted, and a case conference will be scheduled, in order to identify and/or simplify the issues and outline the hearing process in accordance with Rule 19 of the Board’s Rules of Practice. This will occur at the earliest possible date and all parties and/or their counsel are expected to attend the case conference.
  • The Board will direct Legal Aid Ontario to arrange counsel for both the subject of the application and the substitute decision-maker(s). Parties are entitled to arrange their own legal counsel if they wish and such should be done immediately.
  • It is expected that the first hearing date will occur promptly following the case conference, in a manner consistent with the legislative timelines and respecting the need for procedural fairness. All parties and counsel must ensure all efforts are made to make themselves available in light of the significant issues to be determined.
  • Parties need to ensure that someone is available to attend the hearing and present their case.
  • The hospital/doctor(s) are required to provide access to the full clinical record in an electronic manner as soon as possible to counsel for the patient and any other party entitled to access.
  • All relevant documentation and evidence are required to be exchanged between the parties and provided to the Board expeditiously and in accordance with Rules 29 and 30 of the Board’s Rules of Practice.
  • Please advise at the earliest opportunity if there are issues of accommodation.

We understand that these matters have significant impact on the rights of individuals and are accompanied by intense emotion. We appreciate your assistance as the cooperation and coordination of all parties will be required to facilitate the Board’s hearing process.

List of Often-Cited Cases

This list contains certain frequently relied on cases which are supplied to the Consent and Capacity Board for applications of this nature.

This list of cases is not in any way intended to provide legal advice.

Parties before the Consent and Capacity Board no longer need to provide copies of the authorities listed below. The Consent and Capacity Board may consider and rely upon the authorities listed below in hearing Health Care Consent Act matters involving questions of end of life care whether or not the parties to the application raise the listed authorities.

Ackie v. Manocha, 2014 ONSC 669
A.M. v. Benes, 1999 ONCA
Barbulov v. Cirone, 2009 ONSC 15889
Conway v. Jacques, (2002), 59 O.R. (3d) 737 (Ont. C.A.)
Cuthbertson v. Rasouli, [2013] 3 SCR 341; [2013] 3 R.C.S. 341
D.K. v. Gilfoyle, 2021 ONSC 7248
Friedberg v. Korn, 2013 ONSC 960
J.S. v. Evans (2), 2016 ONSC 914
McKitty v. Hayani, 2019 ONCA 805
Murray v. Dev, 2017 ONSC 2966
Scardoni v. Hawryluck, (2004), O.J. No. 300 (ONSC)
Wawrzyniak v. Livingstone, 2019 ONSC 4900