Tuesday, April 16, 2013

Considerable deference given to Ontario Review Board decisions

Hassan (Re), 2013 ONCA 236 holds, consistent with prior case law, that considerable deference will be given to ORB decisions:

[9]          We note that the specialized expertise of the ORB attracts considerable deference to their dispositions when they are reviewed for reasonableness: seeWinko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para. 61.  In our view, this deference is particularly appropriate in a context, as here, where there is very little difference between the actual disposition (detention in a secure unit) and the competing disposition considered by the ORB (detention in a secure unit with discretion granted to the hospital to transfer the patient to the general unit if appropriate).  It is for this reason that it is not surprising that in some recent cases this court has declined to interfere with ORB decisions that rejected so-called hybrid orders: see, for example, Re Hassan, 2011 ONCA 561, at para. 29; and Re Kelly, 2012 ONCA 265, at para. 3.


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