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| Anita Szigeti |
As I see it, both appeals identify the same recurring issues in this area of adjudication and reached the same conclusions, as a result. Both appeals were allowed and the matters returned for hearing before differently constituted panels. Both appellate judgments send the same very strong message to members of the involved boards, but in broader scope to all adjudicators who preside over and determine the liberty of vulnerable litigants up against the state or other powerful institutional actors.
First, as Justice Faisal Mirza reiterated in Hastick v. Banik, 2025 ONSC 3007 (at para. 28), “It is a fundamental principle of natural justice that in the course of the proceeding, the panel for the Board must allow persons whose rights and interests may be affected to be heard and to fairly present their points of view: audi alteram partem.”
This foundational principle of fair adjudication functions as a necessary safeguard against the predictably adverse consequence of the failure to allow salient evidence that favours the vulnerable litigant to come out at the hearing, inevitably leading the tribunal into legal error. Or, as Justice David Paciocco found in Clayton (Re) (at para. 8), relying on earlier jurisprudence, a miscarriage of justice “consisting of ‘a failure to consider evidence relevant to a material issue’ on a matter of substance that is essential rather than peripheral to the reasoning process.”
A detailed analysis of the specifics of these cases falls outside the scope of this short opinion piece, but I do encourage readers to dig into both. They share much in common, even apart from the similar nature of the principles of fairness and due process issues at stake. Both judgments are excellent examples of clear judicial writing, accessible reasoning and most importantly, targeted guidance to administrative tribunals adjudicating matters involving the rights of vulnerable litigants, in particular those living with serious mental health issues.
At the heart of both cases, the most acute problem identified was the unfair and inappropriate curtailment of cross-examinations of the expert psychiatrist witness. Clayton’s counsel was told that the low-level nature of charges he faced and his side of the story were irrelevant to determining fitness and was repeatedly ordered to move on. Hastick was a self-represented applicant who had been subjected to compulsory psychiatric treatment against her will under pain of threatened hospitalization for nine years straight by the time she was trying to ask important questions about why or even whether that level of coercion was actually needed. She was prevented from doing so.
The boards in both cases — in error — ruled that central areas of inquiry were irrelevant. They made their decisions by deferring to the opinions of the testifying psychiatrist, without permitting this often conclusory evidence to be tested from the perspective of, by, or on behalf of the person whose liberty or autonomy was hanging in the balance.
There are important lessons here for Ontario’s mental health tribunals, whose decisions were overturned in these two cases. Both tribunals can and should view these judgments as helpful direction from the appellate courts, based on careful considerations of their proceedings. With that said, there is ultimately nothing particularly new or earth-shattering in the guidance provided, as these tribunals have heard similar feedback before, mainly from stakeholders who have often flagged the problems that culminated in the impugned decisions.
However, the hearing processes in these cases were so flawed that on appeal, the reviewing courts had no choice but to intervene, despite the substantial deference owed to expert tribunals of this nature at the hearing level. Bringing such pressing concerns so sharply into focus is surely sufficient impetus for the tribunals to take remedial action. And seriously explore whether in fact at least some of the issues identified have exposed underlying systemic cracks in the culture of mental health adjudication.
I have confidence in the thoughtful leadership of both tribunals that they have already embarked upon this journey, supporting their members in providing consistently full and fair hearings within the confines of the pressures they clearly face to conduct their hearings efficiently. But, as is invariably the case, the fact that these two key judgments arise from recent hearings of both tribunals does suggest there is more work to be done, and urgently so.
In part two of this series, I offer some potential solutions from my personal perspective as counsel to literally tens of thousands of patient applicants before the Consent and Capacity Board and unfit and NCR criminally accused persons before the Ontario Review Board throughout the last three decades and counting. I don’t suggest that Ontario’s two mental health tribunals are identically situated in all respects canvassed in this series — each is stronger and conversely weaker in some areas. But there are enough areas of overlap that their operations can benefit from concerted reform efforts.
I believe we are stronger together and as justice system participants, we all bear a collective responsibility to improve the administration of justice. Working collaboratively to address problem areas as they present, generally in waves as I suggest we are seeing here, can have significant benefit for parties appearing before such administrative agencies as well as the tribunals themselves.
Anita Szigeti is the principal lawyer at Anita Szigeti Advocates, a boutique Toronto law firm specializing in mental health justice litigation. She is the founder of two national volunteer lawyer associations: the Law and Mental Disorder Association and Women in Canadian Criminal Defence. Find her on LinkedIn, follow her on X and on her blog.
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