Modified merit test for Ontario Review Board (ORB) appeals
Stage 1 (mandatory):
In assessing the sufficiency of merit, an LAO staff lawyer will consider whether the legal grounds of appeal have a reasonable likelihood of success. In determining likelihood of success, consideration will be given to the strength of the legal arguments that support the appeal (e.g. incorrect application of the law, misapprehension of evidence, etc.).
If there is a reasonable likelihood of success, LAO will fund the appeal. If there is no merit, the LAO staff lawyer will deny funding. However, if there is at least some merit to the appeal, but not a reasonable likelihood of success, the LAO staff lawyer will proceed to the second stage of analysis.
Stage 2 (if necessary):
If the LAO staff lawyer is of the view that the legal grounds of appeal have less than a reasonable likelihood of success but at least have some chance of success, they should give further consideration to the following:
- Does funding the appeal potentially set a precedent that helps address wider institutional issues for forensic psychiatric patients?
- Is there dissent in the ORB decision?
- Is the position of the hospital favourable to the appellant?
- Is there a novel and important interpretation by the ORB that warrants judicial review?
- The timing of the appeal versus the timing of the next annual ORB hearing—will it become moot?
- Does the appeal deal with changes to the conditions contained in the disposition that could be dealt with at the next ORB hearing, rather than by the Court of Appeal?
- Anything else about the particular case that the LAO staff lawyer considers to be sufficiently important that the appeal should be funded based on “some” merit rather than a “reasonable likelihood of success”.
The LAO staff lawyer will allow the appeal should they find sufficient merit based on these additional considerations.