The main action in Logan involved a BC class action that was certified against manufacturers on behalf of all persons in Canada who received injections of a cosmetic filler called Dermalive and suffered granulomas. 

During certification, the issue arose as to how the representative plaintiff, Ms Logan, would provide notice to potential class members.  She proposed direct mailing and sought an order that physicians across Canada who may have administered Dermalive provide her legal counsel with names, addresses and other contact information of the patients they injected.  The physicians in question were given notice of the application as affected persons but were not named parties in the action.  While they opposed the proposed order, the case management judge ordered the disclosure sought by the representative plaintiff. 

Leave to appeal was granted.  The Court of Appeal found that the disclosure order impermissibly breached doctor-patient confidentiality in circumstances where the high threshold to do so was not justified, and that the case management judge erred in elevating the purposes of the Class Proceedings Act to a level above the fundamental principle of doctor patient confidentiality. 

In doing so, the Court of Appeal reaffirmed the significance of confidentiality to the doctor-patient relationship, a principle which has been repeatedly stated by the Supreme Court of Canada.  

While the Court of Appeal noted that 95% of the expected disclosure would not involve class members, it commented that it would have reached the same conclusion if the proportion of potential class members to non-class members had been reversed.  According to the Court, although the value of financial redress is important, it cannot trump the right of patients to maintain the privacy and confidentiality of their medical information.

Many thought this decision might reopen a debate on foetal rights and add to the recent and growing body of cases on the meaning of the right to life and death. 

The accused was charged under section 243 of the Criminal Code which makes it a crime to dispose of the dead body of a child with intent to conceal its delivery whether the child died before, during, or after birth.  The issue on appeal was whether s. 243 is impermissibly vague in its application to a child that died before birth.  

The trial judge held the provision to be vague.  The Ontario Court of Appeal disagreed.  The Supreme Court of Canada found the provision was not impermissibly vague in that it prohibited the disposal of the remains of a child born at or near full term with the intent to conceal.  As such, the focus is on the event of the birth and the concealment of it.  The SCC ordered a new trial.  In doing so, the SCC seems to have avoided the foetal rights debate and left a decision that is more memorable for its analysis of impermissible vagueness.

Mabior was charged with nine counts of aggravated sexual assault (and other related offences), based on his failure to disclose to women with whom he had sex that he was HIV-positive.  Aggravated sexual assault carries a maximum sentence of life imprisonment.  None of the nine women contracted HIV.  At trial, Mabior was convicted on six counts, reduced to two counts on appeal.  The SCC confirmed three of the convictions against Mabior. 

R. v. DC involved a woman who was diagnosed with HIV in 1991, received treatment, and had sex with a man in 2000 without disclosing her HIV status.  DC advised him of her status shortly afterward and they went on to live together for several years during which they had protected and unprotected sex.  DC's partner never contracted HIV. The couple broke up after the woman accused her partner of assault. He was convicted of assaulting both DC and her son.  A year later, he informed police that DC had not informed him prior to their first sexual encounter that she was HIV positive. DC was charged with sexual assault and aggravated assault.  At the time of their first sexual encounter, DC's viral load was undetectable.  At trial, the court found that DC had sex with her partner without the use of a condom (her evidence was to the contrary) and at a time when she had not disclosed her HIV status. DC's conviction was set aside on appeal on the basis of her low viral load.  The SCC dismissed the appeal and set aside the original conviction on the basis that it was grounded in speculation.

In 1998, the SCC had found in R. v. Cuerrier that the failure to disclose one's HIV status may constitute fraud vitiating consent to sexual relations under the Criminal Code provisions dealing with aggravated sexual assault.  That charge was found to be appropriate because of the risk of serious bodily harm. The Cuerrier test requires two elements:  (1) a dishonest act (either falsehoods or failure to disclose HIV status); and (2) deprivation (denying the complainant knowledge which would have caused him or her to refuse sexual relations that exposed him or her to a significant risk of serious bodily harm).  

Since Cuerrier, criticism emerged that the test is uncertain in failing to draw a clear line between criminal and non‑criminal conduct and that it either overextends the criminal law or confines it too closely.

In revisiting the issue, the SCC clarified that "significant risk of serious bodily harm" will require disclosure of HIV status if there is a "realistic possibility of transmission of HIV".  A "realistic possibility of transmission of HIV" will be negated where the accused's viral load at the time of sex is low; and condom protection is used.  If these two elements are present, there is no requirement to disclose HIV status.

The decision means that individuals taking safe sex precautions by using condoms may still be criminally prosecuted and face life imprisonment if they fail to disclose their HIV status to a partner even where their viral loads are low and their partner did not contract HIV.  Unfortunately, this approach represents a missed opportunity to confirm a human rights and public health based approach for HIV/AIDS in Canada by failing to have considered or to have given adequate weight to the following considerations. First, there are already Criminal Code provisions in place to deal with the concerns arising in the most egregious cases involving intentional transmission of HIV.  Second, reducing the incidence of sexually transmitted diseases is better dealt with through public health programs and human rights legislation rather than through criminal law. Third, individuals who are not HIV positive should also be required to take responsibility for their sexual health.  Finally, the result risks that individuals will be discouraged from pursuing HIV testing, counseling and treatment, key components in eradicating the disease.

The appellants argued that discipline in this context will result in adverse effect discrimination where as their conduct is triggered or caused by a disability, in this case an addiction.

The Court of Appeal found that while the appellants’ addiction is something that distinguishes them from other members of the College who are subject to disciplinary proceedings, the distinction does not amount to discrimination as the differential treatment based on personal characteristics was absent. 

 The Court of Appeal noted that there are a great many addicts who do not commit criminal acts, and it is not discriminatory to hold those who do accountable for their actions. The decision to lay professional disciplinary charges, and the subsequent finding of misconduct, were not motivated by the appellants’ addiction, but rather by their conduct.  While there may be a connection between the appellants’ actions and their disability, there was an insufficient connection to make the College’s actions discriminatory. The fact that the appellants’ conduct was motivated or caused at some level by the addiction did not raise the College’s proceedings to the level of discrimination in law.

With respect to costs, the Court of Appeal confirmed that professional disciplinary bodies have a wide discretion over costs, and so long as the decision is justifiable, transparent and intelligible, judicial intervention is not warranted. The tribunals below were aware that they were not required to award the College any costs, although they did have the jurisdiction under the Health Professions Act to award full indemnity costs. They gave consideration to, but rejected, the argument that because these were test cases, the general membership should bear the expense. They were sensitive to the fact that a costs award should not be crushing. Accordingly, The Court of Appeal found the costs awards were reasonable, and variation was not warranted

The Director asked the court to exercise its parens patriae jurisdiction to determine the course of M's medical treatment.  M's parents are incarcerated, charged with aggravated assault, criminal negligence and failing to provide M with the necessities of life.

In May 2012, paramedics found M at her residence in cardiac arrest.  While resuscitated, she was placed on life support at the hospital where she has remained since that time.  M suffered a profound and irreversible brain injury as a result of the cardiac arrest.  All treating physicians believe that her state in a permanent coma on a breathing machine will not change and that she will not regain consciousness.  If M continues to receive life support, more invasive forms of treatment will be required, including a tracheostomy.  In addition, further life threatening infections may require escalation in her treatment.

The unanimous recommendation of M's treating specialists is that life sustaining therapy should be withdrawn.  M's parents oppose this recommendation by stating that their religious beliefs are that the ultimate course of M's life is determined by God's will and not by doctors.

The court concluded that there is a legislative gap permitting the exercise of parens patriae jurisdiction in that the governing legislation does not give the Director authority to make end of life decisions about apprehended children.

In considering what is in M's best interests, the court observed that the relevant caselaw reflects a general societal understanding that a life without awareness and totally supported by machines is not in accord with the best interests of any patient, including a child.  This is particularly clear where sustaining such a life requires invasive medical treatment and interferes with bodily integrity and human dignity.

While M's parents' religious beliefs are entitled to be considered, they are not determinative, particularly as M is too young to have made her own individual religious commitment.  The parents religious practices are properly limited where they are contrary to M's best interests in a fundamental way.

Another reason to place less weight on M's parents' position is that they are in a direct conflict with M's outcome given that further criminal charges may follow with her death.

This decision has been stayed pending an appeal which will likely be heard this week.

Apparently, there was disagreement within the CMTBC arising out of a previous board decision to reduce the number of education hours required to qualify for registration. A group opposed to that decision formed a voting bloc, with the object of promoting candidates who would restore the prior, more-demanding education requirement. The efforts of this group included solicitation of proxies from registrants who would not be attending the AGM. The registrar received complaints from registrants about how this solicitation was being carried out, and upon reviewing the proxies received, decided a number were inappropriately completed. Eventually, she concluded the entire proxy gathering process was so tainted that if the proxies were exercised in the election, the result would be invalid. As a result, the registrar postponed the AGM election in favour of a mail-in ballot.

The registrar’s decision was challenged by a registrant who brought a petition for judicial review.

In hearing the petition, the court decided that the fundamental issue before it was whether or not the registrar had the authority to cancel the AGM election and conduct a mail-in ballot. Given this was a question of the registrar’s authority or jurisdiction, the court determined, in accordance with the SCC’s 2008 decision in New Brunswick (Board of Management) v. Dunsmuir, that the matter should be reviewed according to a correctness standard.

Applying that standard, the court concluded that the CMTBC bylaws did not give the registrar the authority to postpone or cancel an election ordered by the board. The court was prepared to imply a power to postpone or cancel an election, but only when “extraordinary and unforeseen circumstances” arose that made it impossible to proceed with the election (for example, “if weather conditions made travel to the site of the meeting impossible or if the location of the meeting was somehow rendered uninhabitable”). Absent such extraordinary events, “the Registrar's power is limited to supervising the election which the Board has ordered”. In this case, the registrar had the power to review the proxies received to determine whether or not they were valid, but even if she decided they were all invalid, she did not have authority to cancel the election.

While the court agreed that a mail-in ballot offered practical advantages in the circumstances, it was not something contemplated by the bylaws, and therefore, could not proceed.

The court ordered a new election to take place in accordance with the procedures outlined in the bylaws. It also concluded that the proxies previously deemed invalid could not be used in that election. The court provided directions for the submission of new proxies in conjunction with the new election, including a process for involving scrutineers to screen the proxies received.