Sunday, May 11, 2014

Fact of seeking lawful result not an appropriate basis for another disposition

As every competent lawyer knows, overreaching in submissions runs the risk that the decision maker will not only ignore the submissions but will be inclined to the other side. Asking for a reasonable, but favourable, result is the best approach. That said, in Landrus (Re), 2014 ONCA 371 the mere fact lawful submissions were made was expressly held against the person making the submissions. That was held to be an error:

[14]       After rejecting the hybrid disposition sought by the hospital, the Board said the following:

It remains to be seen whether or not Mr. Landrus will participate in psycho-educational programs and cooperate with respect to treatment at Ontario Shores and it is noteworthy that his application for an Absolute Discharge at this stage of his hospitalization shows a complete lack of judgement or understanding with respect to his situation or his mental illness.  Mr. Landrus at the hearing repeatedly asked for evidence with respect to his symptomatology notwithstanding the fact that he has sought out medications for same and that his symptoms are well documented in the various reports and clearly expressed at the hearing by Dr. Coleman.

[15]       As amicus submitted and the Crown fairly acknowledged, these comments were improper.  Mr. Landrus was entitled to ask for an absolute discharge and was entitled to ask for the evidence that supported the hospital's position.  The Board was not justified in relying on the position Mr. Landrus took at the hearing to buttress its findings.  Although the Board erred in doing so, its error was of no consequence as it had already determined that it would not grant a hybrid disposition – a determination we have found to be reasonable. 

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