It may seem like there is significant activity in the appellate world from mental health tribunal hearings, given the importance of the Judgments coming out of the Court of Appeal for Ontario regarding the Ontario Review Board mainly, but also some Superior Court judgments on appeal from the Consent and Capacity Board.

But, taking into account how many hearings each tribunal holds, the appeals heard and determined constitute but a tiny fraction of the cases.

The ORB holds approximately 2000 hearings annually. If an average of even 40 appeals are heard each year by the Court of Appeal, that’s approximately a mere 2% of the tribunal’s decisions appealed.

Every NCR or unfit accused who does not get the result they sought at the hearing is entitled to know about their right to appeal and has that broad statutory right of appeal. I doubt they’re all aware of these rights. Even though as their counsel, we bear a positive obligation to advise these clients of their right to appeal and facilitate inmate appeals being filed should the client so instruct.

And it’s hardly as if these appeals are hopeless or without substantial merit as a matter of course.

The success rate for these appeals in the last year or two has actually been quite remarkable.

I am personally enormously proud of having won 20 appeals in the last two years alone in our province’s top court for our clients, for example. Now, obviously not all these cases are landmark decisions of precedent setting importance to the practice area, nor do they necessarily advance the jurisprudence substantially in any general sense (though some do) – but they all have significance for the affected individual.

An otherwise seemingly small amendment to a Disposition Order, such as removal of a no contact provision or an expansion of boundaries to access the community or the addition of the hope of community discharge in the coming year – these things can be life changing for the clients on the ground. And 20 appeals allowed in our top Court in the province is still 20 appeals allowed and in my experience anyway, an exceptional and notable result.

That’s on the ORB front alone, however.

From the 10 thousand applications the Consent and Capacity Board now receives annually, about 6500 are heard and in total there were fewer than 15 appeals determined in the last year. Three in the ONCA (all dismissed) and about 12 in our Superior Court of Justice (with arguably one or two allowed at most). That is an essentially insignificant level of appellate oversight of this tribunal.

Decisions of Mental Health Tribunals have been historically largely immune from review. A notable exception was the Mental Disorder Amicus Program in the Court of Appeal for Ontario, which ran from about 2000 to 2013, and kick-started what is now a fairly robust level of review, with tremendous expertise within our province’s top court in this area of the law, having built over a quarter century.

However, appeals from the CCB have always been very few and far between and are now plummeting even further.

There are a combination of factors that contribute to the paucity of appeals taken, heard and decided in this important area of the law. Vulnerable clients who may not be aware of their broad statutory rights of appeal, access to justice barriers detained individual face in getting a Notice of Appeal filed – the timelines and actual procedure to file complicating things immeasurably –, barriers to accessing legal counsel or legal aid and the inability of the practising bar to do this work subject to existing legal aid constraints, to name just a few.

For me personally, the introduction of Case Lines – and then Case Centre – was the final straw standing in my path to taking these appeals on. The administrative burden associated with navigating this online filing system effectively doubled the already unpaid time we have to devote to these appeals. Therefore our office was not involved in any appeals in the last year, until we chose one exceptionally meritorious case to wade back into those tricky waters. That Judgment is still under reserve. We may yet try another, but it’s something a small legal aid driven law practice has to gear up for, plan around and only accept when we can effectively afford to donate a hundred or more hours of lawyer services.

It is, however, critically important that meaningful oversight is provided to these mental health tribunals and that they do receive appellate guidance in their application of the many mental health statutes with their intersecting impact on liberty and autonomy of this extraordinarily vulnerable client population.

Over the coming weeks I intend to continue my analysis and commentary on this important topic of mental health appeals in Ontario.

In the meanwhile, I’ll celebrate reaching another milestone today – 250 appeals argued in the ONCA and SCC alone as of today.

What I said on LinkedIn about all this here:

I’m taking some time today to reflect on one aspect of my career – appellate litigation. With the release of a Judgment yesterday, I’ve reached two significant milestones.

Remarkably, I’ve now won 20 cases in the Court of Appeal for Ontario through the course of the last two years alone. That’s not anything to sneeze at, as it were, and it certainly is an anomaly. I don’t take personal credit for this result but rather highlight the importance of appellate guidance to mental health tribunals.

Also, I now have 250 reported appeal cases between the ONCA and SCC alone. That’s a conservative underestimate of the appellate career I’ve been privileged to have because it doesn’t reflect appeals in other courts, which easily bring the tally to over 300.

Exhausting to even say out loud and I’ve lived it. In my own head I will take a small bow and eat fancy bonbons today.

I don’t take any of this for granted by the way. When I say “privileged”, I mean it. Sure, I work super hard and hone my skills. But also countless vulnerable clients have put their trust in me, and it’s no exaggeration to say they’ve put their lives in my hands.

I’ve been supported by career mentors older than me if you can imagine that, and young enthusiastic lawyers with talent out of my league as well as structural supports that allow the work to be done, even if it is underfunded and underappreciated chronically and historically as well as currently.

Still, a great joy of my life and I look forward to continuing my learning journey to get better and better at it still. The work never stops but it is fascinating and rewarding.