Court of Appeal for Ontario
Date: March 14, 2018
Docket: C64204
Judges: Juriansz, Miller and Nordheimer JJ.A.
Parties
Between
Fernando Ferreira Applicant (Appellant)
and
St. Mary's General Hospital and Dr. Christopher Hinkewich Respondents
Counsel
Jordan Palmer, for Georgiana Masgras, also acting in person
Daphne Jarvis, for the respondent, St. Mary's General Hospital
Sarit Batner, for the respondent, Dr. Christopher Hinkewich
Heard: March 1, 2018
On appeal from: The order of Associate Chief Justice Frank Marrocco of the Superior Court of Justice dated July 9, 2017 and of the costs order of Regional Senior Justice Harrison Arrell of the Superior Court of Justice dated November 28, 2017.
Decision
Nordheimer J.A.:
[1] Introduction
Ms. Masgras is a lawyer. She purports to bring this appeal on behalf of Mr. Ferreira. As the background to this matter demonstrates, this is an unusual case that arises out of an unfortunate factual situation. The case revolves around a lawyer's claim of authority to take steps on behalf of a client who is incapacitated. Mr. Ferreira was the client and Ms. Masgras was his lawyer. Ms. Masgras purports to appeal the order of Marrocco A.C.J.S.C. (the "reviewing judge") as it relates to a decision to set aside an interim injunction that prohibited the removal of Mr. Ferreira from life support. She also appeals the costs order made against her personally by Arrell R.S.J. (the "application judge"). As I shall explain, while she has the right to do the latter, she does not have the right to do the former.
Background
[2] Motor Vehicle Accident and Retention
In December 2016, Mr. Ferreira was in a motor vehicle accident. He retained Ms. Masgras in respect of his claims for compensation for neck and lower back pain and related injuries.
[3] Cardiac Arrest and Hospitalization
On July 3, 2017, Mr. Ferreira was quite unexpectedly found in cardiac arrest at his home. EMS personnel were able to restore his pulse, and brought him to St. Mary's General Hospital in Kitchener ("the Hospital"), where he was provided with life support in the Intensive Care Unit ("ICU").
[4] Deterioration and Prognosis
Over the following days, it became clear that Mr. Ferreira had suffered a very significant brain injury as a result of a lack of oxygen to his brain caused by the cardiac arrest. His condition continued to deteriorate in spite of the intensive care provided. There was no prospect of recovery.
[5] Family Decision to Withdraw Life Support
After consultations with the physicians involved and Mr. Ferreira's family, on July 6, Mr. Ferreira's wife made the decision to remove Mr. Ferreira from life support. No family member, of the over 15 in attendance, nor any of the medical professionals, thought that this was the wrong medical decision or inconsistent with Mr. Ferreira's wishes.
[6] Organ Donation Planning
As is legally required, the Trillium Gift of Life agency ("TGOL") was contacted and advised of Mr. Ferreira's imminent death. Further discussions between TGOL and the family on July 7 led to a decision to offer organ donation. In coordination with TGOL, the withdrawal of life support was scheduled to take place in the morning of Saturday, July 8 to allow the broader family to gather to support each other and to pay their respects.
[7] Ms. Masgras' Intervention
During this time, Ms. Masgras became aware of Mr. Ferreira's condition. Both she and her husband, a chiropractor who was treating Mr. Ferreira, contacted Mr. Ferreira's wife and urged her to reconsider the decision to remove Mr. Ferreira from life support. They also contacted members of Mr. Ferreira's family, through a friend of Mr. Ferreira's, to urge the same thing. Notwithstanding these entreaties from Ms. Masgras, the family did not change their minds.
[8] Decision to Seek Injunction
Convinced that the decision to remove Mr. Ferreira from life support needed to be given "further consideration", Ms. Masgras decided to bring an application for an interim injunction restraining the Hospital from withdrawing Mr. Ferreira from life support.
[9] Initial Contact with Court
In furtherance of this application, at or around 7:00 p.m. on Friday, July 7, Ms. Masgras contacted the duty judge line for Central South Region. She was put in touch with a trial co-ordinator. When the trial co-ordinator learned of the relief being sought, she advised Ms. Masgras that the matter could be put in front of a judge immediately once the application materials were ready. She also told Ms. Masgras that she needed to serve the respondent with the application materials before it would be considered by a judge.
[10] Preparation and Service of Materials
Ms. Masgras spent the next number of hours preparing the application materials. Around 3:00 a.m., she arranged to have some application materials served on a nurse at the ICU in the Hospital. The materials were then sent by email to the court. Ms. Masgras did not serve Mr. Ferreira's wife with the materials or advise her of the proposed application.
[11] Ex Parte Injunction Obtained
At approximately 9:00 a.m. on Saturday, July 8, Ms. Masgras re-attended at the ICU and advised the respondent, Dr. Christopher Hinkewich, the physician most responsible for Mr. Ferreira, that she had the application judge on the phone. She told Dr. Hinkewich that the application judge had made a verbal order not to remove Mr. Ferreira from life support.
[12] Formal Service and Family Reaction
In light of the verbal order, Dr. Hinkewich retained counsel. The TGOL physicians, who were there to perform the organ donations, left. The family were told of this development. They were upset and confused. Later that day, Ms. Masgras served the formal injunction order, and later that evening she served copies of her application record.
[13] Brain Death and Motion to Vary
Mr. Ferreira's condition continued to deteriorate. Brain death seemed possible, and testing was initiated to determine whether it had occurred. If brain death had occurred, harm to Mr. Ferreira's organs preventing their donation was a real possibility. As a result, on Sunday, July 9, Dr. Hinkewich's counsel brought a motion to vary the injunction order.
[14] Reviewing Judge's Decision
The motion was heard that day by the reviewing judge on an urgent basis by telephone. Ms. Masgras participated in the motion, as did counsel for the Hospital and for Dr. Hinkewich. During the hearing, the court was advised that Mr. Ferreira had been declared brain dead. The reviewing judge set aside the interim injunction and dismissed the application. He ordered that the costs of the application, including the costs of the motion to vary, be reserved to the application judge.
[15] Outcome
The order of the reviewing judge was immediately communicated to the respondents. Mr. Ferreira was removed from life support and he passed away. The organ donation was accomplished.
[16] Notice of Appeal
On August 18, 2017, Ms. Masgras filed a notice of appeal from the order of the reviewing judge with this court. The notice of appeal seeks to have the order of the reviewing judge set aside. The notice of appeal also seeks a series of orders that are best described as declarations, including an order that Ms. Masgras "had standing in the matter of whether Mr. Ferreira's life support system should be maintained or removed."
[17] Costs Hearing Adjournment
In light of the appeal, Ms. Masgras sought to adjourn the costs hearing that was scheduled to be heard before the application judge on October 11, 2017. Ultimately, the costs hearing was held on October 27. At that hearing, all counsel agreed that further oral submissions were not necessary and that the costs could be determined on the basis of the written materials.
[18] Costs Award
The respondents sought their costs of the application on a substantial indemnity basis against Ms. Masgras personally. Dr. Hinkewich sought costs in the amount of $20,796.52. The Hospital sought costs in the amount of $20,048.46. On November 28, 2017, the application judge awarded costs of $7,500 to each of the respondents, payable by Ms. Masgras personally.
[19] Application Judge's Reasoning
In giving his reasons, the application judge said, at para. 29:
I am satisfied that the Respondents incurred costs needlessly as set out in Rule 57.07(1) as a result of the inappropriate application brought by Ms. Masgras who had no instructions, submitted misleading material to the court, and was at the very least negligent or mistaken in her preparation of the material submitted to me.
The Main Appeal
[20] Lack of Authority and Mootness
The main appeal, that is the appeal from the order of the reviewing judge, can be dealt with briefly. It cannot succeed for two fundamental reasons. First, Ms. Masgras had no instructions to bring this appeal. Indeed, she had no instructions to bring the underlying application. Further, the underlying application was stayed as a result of Mr. Ferreira's death by virtue of r. 11.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, unless and until an order to continue is granted under r. 11.02. No such order has ever been obtained. Once death occurred, the right to bring this appeal vested in the estate trustee. Consequently, this appeal is improperly constituted as it has not been brought by the estate trustee nor has it been assigned by the estate trustee to Ms. Masgras. As a result, the appeal must be quashed. Alternatively, the underlying application must be dismissed pursuant to r. 15.02(4) as it was commenced without Mr. Ferreira's authorization.
[21] Mootness
Second, and in any event, as is apparent from the facts, the appeal is now moot. Even if Ms. Masgras could bring a successful appeal to set aside the reviewing judge's order (and it would not be successful), the result would be of no moment given that Mr. Ferreira is deceased. Further, there is no basis for this court to give the type of declaratory orders that are sought in the notice of appeal.
[22] Dismissal of Main Appeal
The main appeal must therefore be dismissed.
The Costs Appeal
[23] Indulgence Granted
I begin by noting that Ms. Masgras was given an indulgence by this court. She was allowed to wrap her costs appeal into her main appeal even though she did not seek leave to appeal the costs award as required by s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and r. 61.03.1(17) of the Rules of Civil Procedure.
[24] Ms. Masgras' Position
The costs decision directly engages the propriety of Ms. Masgras' conduct throughout this entire proceeding. Ms. Masgras submits that she was entitled to take the steps that she did in obtaining the interim injunction, and then opposing the motion to set aside that order, and indeed then bringing an appeal, on the basis that she was obliged as Mr. Ferreira's personal injury lawyer in a separate matter, to protect his interests and further "his cause".
[25] Reliance on Professional Conduct Rules
In support of her position, Ms. Masgras relies on r. 3.2-9 of the Rules of Professional Conduct of the Law Society of Ontario, which reads:
When a client's ability to make decisions is impaired because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal lawyer and client relationship.
[26] Full Context of Commentary
She also relies on commentary 3 to that Rule, but only on the final sentence that reads "In any event, the lawyer has an ethical obligation to ensure that the client's interests are not abandoned." To put that statement into context, the whole of the commentary needs to be considered. The entirety of commentary 3 reads:
A lawyer with a client under a disability should appreciate that if the disability of the client is such that the client no longer has the legal capacity to manage their legal affairs, the lawyer may need to take steps to have a lawfully authorized representative appointed, for example, a litigation guardian, or to obtain the assistance of the Office of the Public Guardian and Trustee or the Office of the Children's Lawyer to protect the interests of the client. In any event, the lawyer has an ethical obligation to ensure that the client's interests are not abandoned.
[27] Failure to Obtain Authorization
Ms. Masgras did not take any steps to have an authorized representative appointed. Indeed, it is not apparent on the record that Ms. Masgras sought or obtained any form of instructions from any next of kin of Mr. Ferreira, most notably, his wife. I note, on this point, that under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, s. 20, if a person is incapable with respect to treatment, consent may be given by a person designated in the section, one of which is the incapable person's spouse.
[28] Acting Contrary to Family Wishes
In fact, rather than attempting to obtain instructions from a next of kin, what is clear on the record is that Ms. Masgras acted in a manner that contravened the wishes of Mr. Ferreira's next of kin without ever advising Mr. Ferreira's wife, or any other member of his family, of her intended actions. More specifically, Ms. Masgras never told any member of Mr. Ferreira's family that she intended to go to court and obtain an injunction to restrain the family from doing what they had decided to do, that is, to remove Mr. Ferreira from life support.
[29] Misunderstanding of Lawyer's Duty
Ms. Masgras contends that her perceived obligation to protect Mr. Ferreira gave her the right to act in such a fashion. In addition to her reliance on the Rules of Professional Conduct, to which I have referred above, Ms. Masgras also relies on the decision in Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401. In particular, Ms. Masgras relies on the various references in that decision to the "lawyer's duty of commitment to the client's cause".
[30] Fundamental Principle: Client Instructions Required
Ms. Masgras fundamentally misunderstands the principles enunciated in that case. That decision does not support Ms. Masgras' proposition that a lawyer is entitled to take whatever steps s/he wishes in furtherance of what the lawyer thinks is the client's "cause". What Ms. Masgras appears not to understand is the fundamental principle that lawyers must act in accordance with the instructions of their clients.[1] Lawyers do not have a carte blanche to take steps of their own volition under the guise of furthering the client's perceived cause. In particular, lawyers do not have the right to institute proceedings without being armed with instructions from their clients to do so.
[31] Breach of Professional Principles
Simply put, Ms. Masgras had no authority to take the steps that she did. In doing so, Ms. Masgras breached the basic principles that apply to the conduct of lawyers, particularly their duty to act honourably.
[32] Circumstances of the Injunction
In my view, that conclusion is sufficient to dispose of Ms. Masgras' costs appeal against the application judge's order requiring her to personally pay the costs of the injunction application. It is worth repeating that Ms. Masgras launched the application for an interim injunction without instructions. She did so without advising Mr. Ferreira's family of her intentions to do so. She also obtained the interim injunction without first giving any notice of her intentions to the Hospital or to the physician treating Mr. Ferreira, save and except for serving the application materials on a nurse in the ICU at 3:00 in the morning on the day that she obtained the ex parte injunction. Further, she obtained the extraordinary injunctive relief based on what the application judge found to be misleading material.
[33] Good Faith Defence
Ms. Masgras submits that her actions were undertaken in good faith and thus do not rise to the level necessary to warrant a costs award against her personally. In support of her submission, she points to the decision in Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26, [2017] 1 S.C.R. 478.
[34] Standard for Personal Costs Against Lawyer
It is not clear to me how Ms. Masgras derives any support for her position from the decision in Jodoin. The authority of a court to award costs against a lawyer personally was reviewed in that decision. The general requirement was stated by Gascon J., at para. 29:
In my opinion, therefore, an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer's acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice.
[35] Serious Interference with Administration of Justice
In my view, the facts of this case amply establish that Ms. Masgras' actions "seriously interfered with the administration of justice." She acted without instructions. She acted in a manner that was directly contrary to the wishes of Mr. Ferreira's family. And she did so when one of the most difficult, emotional, and personal of decisions was being undertaken by them. Further, Ms. Masgras' actions potentially interfered with the ability of another individual to receive what might well have been a life-saving organ transplant. Ms. Masgras misused the court process and, in doing so, she brought the integrity of the administration of justice into disrepute. On this point, I refer to rule 2.1-1 of the Rules of Professional Conduct which reads:
A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.
[36] Continued Pursuit Despite Mootness
Ms. Masgras contends that she was just trying to protect her client and to ensure that all available information was considered and reviewed by an independent party, namely a judge, before the decision to remove Mr. Ferreira from life support was taken. Even if one could accept the bona fides of Ms. Masgras' intentions, that objective had been met once the matter was before the reviewing judge. Yet Ms. Masgras did not let the matter go. Rather, she opposed the motion to set aside the interim injunction and she then appealed the reviewing judge's decision. Indeed, she told the reviewing judge, right after he announced his decision, that she intended to appeal it. It is readily apparent from her conduct in this regard that Ms. Masgras was not interested in an independent review. Rather, she was intent on achieving her own personal objective.
[37] Procedural Complaints
As a final defence, Ms. Masgras raises various procedural complaints with respect to the manner in which the costs hearing took place. Specifically, she says that she was not made fully aware that costs would be sought against her personally and she was not "present" when the costs issue was determined. On the first point, the record clearly establishes that Ms. Masgras knew that costs were being sought against her personally. Indeed, her own costs submissions directly address that prospect. On the second point, Ms. Masgras agreed with the other counsel, after the costs hearing had been adjourned at least twice, that the application judge could proceed to determine the costs based on the written material. She cannot now complain about the process that she consented to.
[38] Application Judge's Generosity
Finally, in making the costs award against Ms. Masgras, the application judge considered the appropriate principles. There is no foundation for any challenge to his conclusion that Ms. Masgras' conduct warranted a costs award against her personally. In fact, the application judge was more than generous towards Ms. Masgras, given her conduct, in fixing the costs in the amounts that he did. Ms. Masgras was entirely responsible for all of the costs incurred by Dr. Hinkewich and the Hospital. In my view, an order awarding them costs on a full indemnity basis would have been justified.
[39] Dismissal of Costs Appeal
Nevertheless, Ms. Masgras was not deterred. Rather than learning her lesson, she continued with the main appeal. As should be apparent from the above, there was no merit to the main appeal as there is no merit to the costs appeal. I would dismiss Ms. Masgras' appeal of the costs award.
[40] Costs of the Appeal
The respondents are entitled to their costs of the appeals on a substantial indemnity basis given the conduct of Ms. Masgras. Ms. Masgras will personally pay the costs of the Hospital and Dr. Hinkewich. I would fix the costs of the Hospital at $19,885.74 and the costs of Dr. Hinkewich at $11,642.00. Both amounts are inclusive of disbursements and HST.
Released: March 14, 2018
"I.V.B. Nordheimer J.A."
"I agree. R.G. Juriansz J.A."
"I agree. B.W. Miller J.A."
Footnote
[1] I recognize that there are certain exceptions to the rule that lawyers must follow the instructions of their clients but those exceptions are not engaged in this case.
