Leah Ostler

An appeal concerning a freedom of religion challenge to the medical and legal criteria for determining death.

The appellant's substitute decision-makers sought to prevent the withdrawal of life support and to rescind a death certificate based on the appellant's religious belief that death occurs only when the heart stops beating, not upon total brain death.

The Court of Appeal dismissed the appeal, upholding the application judge's conclusion that the claim could not succeed.

However, the court provided important guidance on the proper analytical approach to Charter rights and Charter values, clarifying that the appellant should have been presumed to be a Charter rights holder for purposes of the substantive analysis, and that the application judge erred in her methodology regarding freedom of religion analysis and Charter values application to the common law.

The applicant, though unsuccessful in the main application concerning the determination of brain death and the withdrawal of life support, sought partial indemnity costs from the respondent physician, arguing the case involved significant public interest issues.

The respondent, who was successful, did not seek costs but argued for each party to bear their own costs.

The court acknowledged the public interest dimensions of the case, particularly regarding the common law definition of death and Charter rights, but found it did not meet the "truly exceptional" standard for special costs as set out in Carter v. Canada (Attorney General).

Crucially, the court noted a lack of authority for awarding costs to an unsuccessful litigant against a private individual respondent, as opposed to a government or public authority.

Consequently, the applicant's request for costs was denied, and parties were ordered to bear their own costs.

The applicant, who was declared dead by neurologic criteria (brain death), sought an order to be maintained on mechanical ventilation, arguing that her Christian belief that life continues as long as the heart beats should be accommodated under the Charter.

The Superior Court of Justice held that the common law definition of death includes brain death and that the applicant met the medical criteria for brain death despite exhibiting spinal reflex movements.

The court further held that the Charter does not apply to a deceased person or to a physician making a medical determination of death.

The common law definition of death was found to be consistent with Charter values, as the need for certainty and objectivity outweighs religious accommodation.

Finally, the court ruled that the Consent and Capacity Board lacks jurisdiction over disputes involving deceased persons, as mechanical ventilation of a corpse does not constitute 'treatment' under the Health Care Consent Act.

The application was dismissed.