Friedberg et al. v. Korn et al., 2013 ONSC 960

COURT FILE NO.: 03-58/12

DATE: 20130403

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Albert Friedberg, Susan Jacobowitz, and Doris Bistricer

Respondents (Appellants)

– and –

Dr. Sheryl Korn

Applicant (Respondent in Appeal)

and –

Frieda Friedberg

Respondent (Respondent in Appeal)

Mercedez Perez, for the Appellants, Albert Friedberg, Susan Jacobowitz, Doris Bistricer

Mark Handelman, for the Respondent, Dr. Sheryl Korn

Eric Bundgard, for the Respondent, Frieda Friedberg

HEARD: January 11, 2013

CAROLE J. BROWN J.

REASONS FOR DECISION

Nature of the Appeal

[1] The Appellants, Albert Friedberg, Susan Jacobowitz and Doris Bistricer (the “Appellants”), are the children and attorneys for personal care of the Respondent, Frieda Friedberg (“Mrs. Friedberg”), who is presently a patient at Baycrest Hospital (“Baycrest”).

[2] The Appellants appeal from the June 6, 2012 decision of the Consent and Capacity Board (the “Board”), comprised of Michael Newman, Dr. Joseph Glaister and Earl Campbell, which gave directions to the Respondent, Dr. Sheryl Korn (the “Respondent” or “Dr. Korn”), pursuant to section 35(1) of the Health Care Consent Act, 1996 S.O. 1996, C. 2 (HCCA).

[3] The Board found that Mrs. Friedberg, in her Power of Attorney for Personal Care dated May 13, 2003 (the "PAPC"), expressed a clear prior capable wish applicable to Mrs. Friedberg’s current circumstances which required her attorneys to withdraw the treatments then being administered.

The Facts

[4] Mrs. Friedberg is an 86-year-old widow with an extensive and devoted family, including three children (the Appellants), 7 grandchildren and 52 great grandchildren. She has exhibited complete and devout adherence to the Orthodox Jewish religion throughout her lifetime, practicing total observance of the rituals and ethics of her faith. She maintained these traditions even during the Holocaust as a young Jewish woman living in France.

[5] As of early 2012, Mrs. Friedberg’s conditions consisted of dementia, hypertension and hyperthyroidism. While vacationing in Florida, she choked on food and suffered a cardiac arrest. She was resuscitated in hospital but sustained a serious anoxic brain injury. A tracheostomy was performed and a feeding tube was inserted into her stomach. She has not regained consciousness since the injury and is described as being in a persistent vegetative state.

[6] Mrs. Friedberg was admitted to Baycrest on February 29, 2012. The Respondent, Dr. Korn, is her most responsible physician.

[7] Following Mrs. Friedberg’s admission to Baycrest, the Appellants became aware of the PAPC. Mrs. Friedberg had appointed the Appellants jointly as her attorneys for personal care.

[8] The PAPC contained the following provision (referred to as the “end of life clause”):

The following are my instructions to my attorneys, and my wishes, with respect to the giving or refusing of consent to specified kinds of treatment under specified circumstances:

I hereby instruct that if there is no reasonable expectation of my recovery from physical or mental disability, I be allowed to die and not be kept alive by artificial or heroic measures. I do, however, instruct that medication be mercifully administrated to me to alleviate suffering even though this may shorten my remaining life.

[9] The PAPC concurrently contained the following provision granting the attorneys full discretion respecting end of life decision-making:

I authorize and direct my attorneys for personal care to make on my behalf all decisions with respect to my personal care if I am mentally incapable of making such decisions for myself and particularly decisions with respect to the following aspects of personal care, the enumeration of which is not in any way to limit the general powers herein conferred, namely, […]

VIII cessation or continuation of measures whereby my life may be artificially prolonged.

[10] Following the discovery of the PAPC, discussions ensued between the Appellants and the treatment team respecting the course of Mrs. Friedberg’s future care. The Appellants agreed that a “do not resuscitate order” (“DNR”) was consistent with the end of life clause. However, the Appellants did not agree to a withdrawal of the treatment presently given to maintain Mrs. Friedberg, including removal of the tracheostomy or feeding tube, or to a cessation of antibiotic treatment. The Appellants believed that Mrs. Friedberg’s overriding wish was to grant discretion in personal care decision-making to the Appellants.

[11] Believing there to be uncertainty respecting the scope and effect of the PAPC and whether the PAPC actually expressed Mrs. Friedberg's wishes, following her discussions with the Appellants, Dr. Korn applied to the Board for directions pursuant to section 35 of the HCCA (Form D application).

The Hearing before the Board

General

[12] The hearing before the Board proceeded on May 16, May 30 and June 6, 2012. Mrs. Friedberg was not present at the hearing nor, given her condition, could she instruct counsel; however, she was represented by counsel pursuant to section 81 of the HCCA.

Dr. Korn’s Evidence

[13] Dr. Korn testified that Mrs. Friedberg is in a persistent vegetative state with no expectation that her condition will improve. The tracheostomy tube facilitates suctioning of Mrs. Friedberg’s throat which relieves congestion and discomfort; without this tube, Mrs. Friedberg would die a difficult death, as she is not otherwise able to clear her airway on her own. Mrs. Friedberg similarly requires the feeding tube to provide her with nourishment and hydration; without the feeding tube, she would starve to death. Mrs. Friedberg has also been treated with intravenous antibiotics when needed.

[14] Dr. Korn testified that Mrs. Friedberg is able to breathe and cough on her own and is generally not in pain, although she may still intermittently experience pain. She testified that Mrs. Friedberg has not yet entered a tangible dying process.

[15] With reference to the PAPC, Dr. Korn testified that there is no standard medical definition of “artificial” or “heroic” measures. Although she considered the tracheostomy and feeding tubes to amount to heroic and artificial intervention at the time of insertion in Florida, she did not consider the current treatment measures “heroic” and found the term “artificial” difficult to interpret.

[16] Dr. Korn testified that she would not recommend removing the tracheostomy and feeding tubes, as their removal would trigger a painful and difficult demise, although she acknowledged that other physicians might disagree with her interpretation of whether the treatments should be withdrawn. With respect to continuing antibiotics in addition to the tracheostomy and feeding tubes, Dr. Korn testified that she would not consider these measures to be "heroic or artificial". The evidence was that antibiotics were given infrequently for development of a systemic infection, which had occurred approximately twice during her hospitalization.

Heather Hisey’s Evidence

[17] Heather Hisey, a lawyer who had practiced at Torys LLP for 23 years in the area of wills, powers of attorney and trusts and estate planning, prepared the wills for Mr. and Mrs. Friedberg in 2001. At the same time, she prepared powers of attorney for property and PAPCs for them.

[18] Ms. Hisey prepared a new will and updated power of attorney documents, including the PAPC in issue, for Mrs. Friedberg in 2003 following her husband's death. Ms. Hisey met with Mrs. Friedberg on February 6 or 26, 2003 when Mrs. Friedberg contacted her to make a new will following her husband's death. At the same time, her husband was removed as attorney in the power of attorney for property and the PAPC. On March 5, 2003, Ms. Hisey sent Mrs. Friedberg a draft of the documents she had prepared, including the updated PAPC.

[19] Ms. Hisey provided the Board with the contents of her file, which included file notes respecting meetings with Mr. and Mrs. Friedberg in 2001 when their initial wills and PAPCs were prepared, her correspondence to Mr. and Mrs. Friedberg in 2001, the documents produced (including wills, powers of attorney for property and powers of attorney for personal care), as well as her notes, drafts and correspondence respecting her retainer by Mrs. Friedberg in 2003.

[20] Ms. Hisey had no independent recollection of her discussions with or instructions from Mrs. Friedberg respecting the PAPC or the earlier 2001 documents, but exclusively gave evidence based on her notes and her general practice. Reviewing the notes and other file documents suggests that the primary purpose of her retainer was to prepare wills for Mr. and Mrs. Friedberg and that the preparation of a PAPC was incidental or ancillary. She acknowledged that she may have recommended that the PAPC be prepared in the absence of any request from Mrs. Friedberg.

[21] Ms. Hisey gave the following evidence:

• The end of life clause in the PAPC was the standard boilerplate clause included in her firm’s precedent, which was automatically presented to clients seeking a PAPC, as a ninety-nine out of one hundred clients want this clause;

• It was her general practice to draw the client’s attention to the end of life clause, although it was not her practice to provide examples to clients respecting the different medical scenarios to which the end of life clause might apply. In the same vein, it was up to their named attorneys for personal care to interpret the “very general language” in the end of life clause in a particular situation; while she had no independent memory and no notes in this regard concerning Mr. and Mrs. Friedberg, she was certain that she brought the “no heroic measures” provision to the attention of Mr. and Mrs. Friedberg in 2001 and certain that she did the same for Mrs. Friedberg in 2003;

• There were no notes regarding any discussion with Mrs. Friedberg about the end of life clause in either 2001 or 2003. In this regard, Ms. Hisey testified that "I don't have any notes dealing with such a discussion therefore… I would not have had those discussions."

• It was not her practice to canvass her clients’ religious beliefs;

• She did not explain to Mrs. Friedberg that the end of life clause would tie the hands of her attorneys or remove their general discretion to make personal care decisions respecting the cessation or continuation of treatment in an end of life scenario; she explained that "this is an expression of your wishes that they will then have to apply to the particular circumstances";

• There were no notes on the end of life clause itself (either in 2001 or 2003), and the bulk of her handwritten notes in 2003 addressed changes made to Mrs. Friedberg’s will;

• She did not have any difficulty communicating in English with Mrs. Friedberg; and

• “She testified that heroic” and “artificial” are not legal terms. Rather, they are medical terms that she encouraged her clients to discuss with their physicians.

[22] Ms. Hisey testified that her general practice was to draw her clients’ attention particularly to the end-of-life clause in order to ensure that it was what they wanted. She testified that her general practice would be to explain the provision as being a "wish that no extreme measures be taken, heroic or artificial measures, but that medication be administered to be comfortable". She would further indicate that "it's up to your attorney to interpret that in the particular situation".

[23] Ms. Hisey described the term “heroic or artificial measures” as a medical term, and she encouraged her clients to consult a doctor to explain the impact of this term in the myriad medical situations in which it might become relevant. Ms. Hisey was clear that it was not her general practice to explain the types of scenarios in which an end of life clause might become relevant, the types of decisions that might need to be made, or the types of procedures that would qualify as “artificial or heroic” and in what circumstances.

[24] Similarly, Ms. Hisey testified that her general practice was to explain that a PAPC authorizes an attorney to make medical decisions for an individual if and when that individual is rendered incapable. It was not Ms. Hisey’s general practice to explain that an end of life clause removes an attorney’s discretion in the context of section 21 of the HCCA. Ms. Hisey testified that with respect to the end of life clause and the attorney's duties, she would not explain to her clients that the end of life clause could tie the hands of the attorney, or that it would remove almost all discretion from the attorney.

The Appellants’ Evidence

[25] The Appellants’ collective evidence attested to Mrs. Friedberg’s deeply held Orthodox Jewish religious beliefs and the pervasive influence of those beliefs on her daily life. Her religious faith was not merely incidental; it was something for which she greatly sacrificed. She ate strictly kosher, strictly observed the Sabbath and Jewish holidays, and consistently practiced ritual immersion. She insisted that the Appellants attend Jewish schools to learn Hebrew and the tenets of the Orthodox Jewish faith. After moving to Toronto, Mr. and Mrs. Friedberg chose Rabbi Ochs’ Orthodox Jewish congregation because it was the most traditionally stringent congregation in their area.

[26] There was some evidence that Mrs. Friedberg’s proficiency in English was deficient. The Appellants testified that she spoke mainly Yiddish, German, French and Spanish, having lived, before coming to Canada, in Vienna, Belgium, France and Uruguay. Although she read English newspapers, she was not a critical reader and would often misunderstand information.

[27] Before his death in 1999, the husband of the Appellant, Ms. Jacobowitz, suffered a catastrophic illness which rendered him unconscious and unlikely to recover. He was placed on a respirator and feeding tube and remained in this condition for many months. Mrs. Friedberg was supportive of Ms. Jacobowitz’ end of life decision-making for her husband and told her “you are doing the right thing”. Ms. Bistricer testified that her mother had expressed disagreement with withdrawal of that treatment because only God should take her son-in-law’s life.

[28] The Appellants were not aware that their mother had ever expressed a prior capable wish respecting end of life circumstances. They were very surprised that the PAPC contained an end of life clause contrary to their family’s particular Orthodox Jewish beliefs, given their mother’s deeply held religious faith, and found it inconceivable that Mrs. Friedberg would choose to adhere to an end of life clause that directly conflicted with her religious beliefs. They also expressed disbelief that their mother would have put them in a position that would require them to make a decision that undermined the tenets of the Orthodox Jewish faith as observed by their family.

Rabbi Ochs’ Evidence

[29] Rabbi Ochs had known Mrs. Friedberg and her late husband since they joined his Orthodox Jewish congregation upon their immigration to Canada in 1970.

[30] Rabbi Ochs confirmed that Mrs. Friedberg’s adherence to Orthodox Judaism was complete and that she was very devout. She was fully observant in respect of all the tenets of her faith including following kosher laws, full observance of the holidays and the Sabbath, refraining from forbidden activities, and in the practice of hospitality, kindness and charity. It was his opinion, based on his knowledge of Mrs. Friedberg, that she would not knowingly contravene a principle of her faith.

[31] Rabbi Ochs explained the common Orthodox Jewish approach to end of life care. He noted that in Orthodox Judaism the terms “heroic” or “artificial” are not meaningful in the end of life context. All medical interventions available to prolong life must be performed, unless the person is in extreme pain. “Pulling the plug” is considered tantamount to murder. Although noting some variance of opinion respecting the initiation of life-preserving measures, Rabbi Ochs stated that this was the consensus view of the Orthodox Jewish community.

[32] In his experience, many adherents of the Orthodox Jewish faith will appoint a person to make end of life decisions for them whom they trust and in whom they can have confidence that personal care decisions will be made in keeping with the requirements of Jewish law.

Rabbi Cohen’s Evidence

[33] Rabbi Cohen, a reputable Orthodox Jewish scholar from New York, with expertise in end of life Orthodox Jewish teachings, corroborated Rabbi Ochs’ testimony. He explained that, as life is God-given, there is an obligation to preserve life as long as possible in the Orthodox Jewish faith, unless the person has entered the dying process and is in incessant, excruciating pain. Rabbi Cohen stated that removing the feeding tube or the tracheostomy tube would be tantamount to murder. In cross-examination, in response to a question as to whether Mrs. Friedberg may have chosen to contravene Orthodox Jewish law unbeknownst to her family, Rabbi Cohen emphasized the importance of examining the individual’s level of religiosity to understand what he or she intended in end of life wishes.

The Board’s Decision

[34] The Board found that Mrs. Friedberg had expressed a clear prior capable wish in the PAPC that was applicable to her current circumstances. The Board further found that the tracheostomy and feeding tube were both artificial measures, and stated that they "accepted the medical evidence" on this point and that "there was no evidence to the contrary".

[35] The Board applied the analysis in Barbulov v. Cirone, (2009) 2009 15889 (ON SC), 176 A.C.W.S. (3d) 1157 (Ont. S.C.J.) (Barbulov) and held that, on reviewing the evidence of the Appellants and Ms. Hisey, Mrs. Friedberg “understood what she was doing through her POA, that she knew and approved of its contents and effects…” and that the instructions in the PAPC were “clear and unambiguous”.

[36] The Board accepted the evidence of Ms. Hisey regarding her general practice and relied on that in finding that Mrs. Friedberg "knew and approved" of the contents and effects of the PAPC. The Board held that the specific wish expressed "prevailed over a general philosophy or general religious beliefs". More particularly, the Board observed that Mrs. Friedberg had good command of English, was a private person who did not discuss certain issues, including her PAPC with her children, and ultimately “knew and approved” of the contents and effects of the PAPC as demonstrated by Ms. Hisey’s general practice evidence.

[37] Ultimately, the Board held that Mrs. Friedberg, as a capable individual, made deliberate end of life choices that conflicted with her traditional religious beliefs, and that the evidence of the Appellants and the Rabbis on the general Orthodox Jewish views on end of life care did not prevail over the clear wishes expressed by Mrs. Friedberg in her PAPC.

[38] The Board then determined that the end of life clause was applicable to Mrs. Friedberg’s current circumstances. The Board reviewed the dictionary definition of the term “artificial”, and held that the tracheostomy and feeding tube were captured by this definition in Mrs. Friedberg’s current circumstances (i.e. being in a vegetative state with no reasonable prospect of recovery). This finding was made despite noting Dr. Korn’s recommendation that the tracheostomy and feeding tube not be removed.

Preliminary Issues

Potential Application of Rasouli

[39] Two preliminary issues arose in the context of this appeal, as follows.

[40] Prior to the hearing, I requested submissions from counsel regarding the impact that the case of Rasouli (Litigation Guardian of) v Sunnybrook Health Sciences Center, 2011 ONCA 482, leave to appeal to SCC granted, 431 N. R. 397 (Rasouli) may have on this case, and whether it was preferable to await the pending decision of the Supreme Court of Canada in Rasouli. Counsel prepared joint written submissions to address this preliminary question, which was done at the opening of the hearing.

[41] While the facts are similar in the two cases, I accept the reasoned written and oral submissions advanced jointly by the parties that the issues in the two cases are sufficiently distinct such that the ultimate decision of the Supreme Court of Canada in Rasouli will not have any, or only a very remote, effect on the current matter. Accordingly, I held that this matter should proceed to be heard and not await the Supreme Court of Canada's decision in Rasouli.

[42] In Rasouli, the Court of Appeal for Ontario found that consent to treatment is required for a “treatment package” that includes the withdrawal of life support coupled with palliative care. If physicians disagree with the substitute decision-maker’s treatment decision respecting the proposed “treatment package”, the physicians must apply to the Board to resolve the dispute. In Rasouli, there was no PAPC and no end of life clause to be interpreted. The issue was whether the doctors needed consent to withdraw treatment considered by them to be futile.

[43] This is not the issue in the current matter. The doctor does not disagree that consent is required. The appeal before this Court arises out of a Form D application which requires the Board to determine whether Mrs. Friedberg’s 2003 PAPC contains a prior capable wish applicable to her current circumstances. In contrast, in Rasouli, it was clearly acknowledged that there was no prior capable wish (there was no PAPC) which would be applicable to his current circumstances.

Representation of Mrs. Friedberg by Mr. Bundgard

[44] Mr. Bundgard, who had been appointed to represent Mrs. Friedberg at the Board hearing pursuant to section 81 of the HCCA, sought to make submissions on behalf of Ms. Friedberg at the appeal. He argued that she is a named party who warrants an independent voice, given that she cannot speak. Mr. Bundgard submitted that his representation is consistent with the purpose and intent of the HCCA, to ensure that Mrs. Friedberg has an independent voice. While he acknowledged that his submissions must, of necessity, be highly restricted, he submitted that, in these circumstances, an independent perspective should be given, whether as her representative under section 81 or as amicus curiae.

[45] Ms. Perez, on behalf of the Appellants, expressed concern about Mr. Bundgard making submissions on appeal which, she submitted, would undermine the appeal process. She submitted that while he was appointed pursuant to section 81 of the HCCA to participate on behalf of Mrs. Friedberg at the Board hearing, it would be potentially highly prejudicial on appeal to permit him to make submissions, as he is unable to obtain any instruction from Mrs. Friedberg.

[46] Mr. Handelman, on behalf of the Respondent, Dr. Korn, pointed out that Mr. Bundgard had participated fully in the Board hearing and should be permitted to give Mrs. Friedberg a voice on appeal. He argued that, while this is a novel point, in other appeals from the Board, including Barbarov, supra, which has been relied upon by the parties, the incapacitated party had representation.

[47] In all of the circumstances, I permitted Mr. Bundgard to make submissions, whether as representative under section 81 of the HCCA or as amicus curiae.

The Issues

[48] The present appeal raises the following legal issues:

a) The Court’s jurisdiction and powers on appeal and the applicable standard of review;

b) Whether the Board erred in holding that Mrs. Friedberg had expressed a clear prior capable wish in the PAPC;

c) Whether the Board erred in holding that such expressed wish was applicable in the current circumstances.

The Parties Positions

Position of the Appellants

[49] The Appellants argue, on appeal, that there was overwhelming evidence to rebut the presumption that Mrs. Friedberg knew and approved of the contents and legal effects of the end of life clause in the PAPC. The Appellants argue that this evidence includes compelling testimony about her stringent Orthodox Jewish beliefs and how the end of life clause was contrary to those beliefs. They further submit that there is compelling evidence which calls into question whether the contents and legal effects of the end of life clause were explained to Mrs. Friedberg prior to the execution of the PAPC. Further, they argue that the PAPC is internally inconsistent and grants discretionary powers to the attorneys that would negate or appear to negate the end of life clause. Finally, they argue that where the consequences of the Board's decision are as critical and significant as in this case (i.e. the Board's decision may lead to a cessation of treatment and therefore a cessation of Mrs. Friedberg's life), a greater degree of certainty is required in determining whether she understood and proved of the contents of the PAPC than the simple, presumptive fact that she signed the document.

[50] The Appellants argue that the totality of the evidence before the Board was sufficient to rebut the presumption that Mrs. Friedberg knew and approved of the end of life clause contained in the PAPC. They argue that this evidence included the circumstances of the meetings between Ms. Hisey and Mrs. Friedberg, the lack of specific information provided by Mrs. Hisey respecting the effect of the end of life clause, Mrs. Friedberg's religious beliefs, her thoughts in an analogous end of life context, internal inconsistencies in the PAPC, and language difficulties.

Position of the Respondent

[51] The Respondent argues that the Board was correct in its findings that there was overwhelming evidence before the Board that Mrs. Friedberg had actual knowledge of the contents of her PAPC and approved of the contents and, specifically, the end of life clause. In the alternative, they submit that there was overwhelming evidence before the Board on which the Board was required, as a matter of law, to impute actual knowledge of the contents of the PAPC to Mrs. Friedberg. They argue that there was no internal inconsistency in the PAPC. Finally, they submit that the PAPC and the end of life clause are applicable to Mrs. Friedberg's present circumstances.

[52] Mr. Bundgard, in his circumscribed role, made brief submissions, which supported those of the Respondent. He considered the arguments of the Respondent, and the decision of the Board, to be reasonable. He submitted that Mrs. Friedberg had experienced counsel, and that Mrs. Friedberg had the opportunity to review the PAPC. He further submitted that Mrs. Friedberg's religious beliefs were not applicable to the considerations at hand and that the Board had applied the appropriate legal tests.

[53] There is no issue as to Mrs. Friedberg’s capacity in either 2001 or 2003.

The Law and Analysis

The Court's Jurisdiction and Applicable Standard of Review

[54] A party before the Board has a broad statutory right of appeal to the Superior Court of Justice from Board decisions on questions of law, fact or both. Section 80(1) of the HCCA provides that the court may exercise all the powers of the Board, substitute its opinion for that of the Board, or refer the matter back to the Board for rehearing. As recognized by Major J. in Starson v. Swayze, 2003 SCC 32, the Board as an expert tribunal, is subject to some deference.

[55] The Supreme Court of Canada has held that the standard of review on questions of law before the Board is correctness while the application of the law to the facts is to be reviewed on a reasonableness standard. [Starson v. Swayze, supra, paras. 5, 84, 88, 110]. The Board’s conclusion must be upheld provided it is among a range of conclusions that could reasonably have been reached on the law and evidence: Starson v. Swayze, supra; New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (Dunsmuir). The question is not how this Court would decide the case, but whether the Board’s decision was reasonable: Conway v. Jacques, (2002) 2002 41558 (ON CA), 214 D.L.R. (4th) 67, 159 O.A.C. 236, (Ont. C.A.), Khosa v Canada (Minister of Citizenship & Immigration), 2009 SCC 12.

[56] In Dunsmuir, supra, para. 47, the Supreme Court defined reasonableness as follows:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions … In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[57] With respect to the application of the reasonableness standard to Board decisions, the Court of Appeal for Ontario acknowledged in Giecewicz v. Hastings, 2007 ONCA 890, para. 13, that “the reasonableness inquiry dictates respect for the expertise and advantaged position of the Board.…it also, however, demands a somewhat probing examination of the reasons offered by the Board for its conclusion. That examination must ensure that the reasons taken as a whole provide a line of analysis, supported by the evidence that can reasonably justify the Board’s conclusion.”

[58] The applicable standard of review and power of this Court on appeal are not contested by the Respondent.

The Legislative Scheme

[59] Section 35(1) of the HCCA allows the health practitioner to apply to the Board for directions in the following circumstances:

A substitute decision-maker or health practitioner who proposed treatment may apply to the Board for directions if the incapable person expressed a wish with respect to the treatment, but,

(a) the wish is not clear;

(b) it is not clear whether the wish is applicable to the circumstances;

(d) it is not clear whether the wish was expressed after the incapable person attained 16 years

[60] Section 35(3) of HCCA stipulates that in providing directions, the Board shall apply section 21 of the HCCA. Section 21 outlines the principles for giving or refusing consent to treatment. Section 21(1) provides that if there is a prior capable wish applicable to the circumstances, consent must be given in accordance with that wish. If there is no such wish applicable to the circumstances or if it is impossible to apply, consent must be given in accordance with the incapable person's "best interests" as outlined in section 21(2).

[61] The role of the Board in a Form D application is to determine whether there is a clear prior capable wish which is applicable in the circumstances. The Board is not to usurp the role of the substitute decision-maker and make a determination based on the best interests of the patient: S (Re), 2011 32775 (Ont. CCB), pages 10-11.

[62] The burden of proof in a Form D application rests on the applicant, which in this instance is the health practitioner. Dr. Korn was required to establish, on a balance of probabilities, that Mrs. Friedberg expressed a prior capable wish that was clear and applicable to her circumstances [S (Re), supra]. A presumption operates that the contents of a power of attorney were known and approved if the document had been read over by the grantor, or if the contents were otherwise brought to his or her attention.

[63] In the circumstances of this case, sections 35(1)(a) and (b) are applicable. The substitute decision-makers must determine whether to give or refuse consent in accordance with section 21. Further, with respect to section 21, Mrs. Friedberg's PAPC contained an end of life clause; therefore, a presumption is created that Mrs. Friedberg intended for the written end of life clause to apply.

[64] This presumption, however, can be rebutted if there is sufficiently compelling evidence of circumstances that the grantor did not know or approve of the contents, with the result that the person advancing the power of attorney would need to satisfy the tribunal or court of the grantor’s knowledge and approval of the contents.” Thus, the Board, in making its determination, must satisfy itself, on all the evidence, “that the person who made the power of attorney for personal care understood and approved of the contents of the document he or she was signing so that it can be said the document expresses the wishes of that person with respect to treatment.” (Barbulov, supra, paras. 44-45)

[65] Ultimately, the legal question before the Board was whether the end of life clause contained in Mrs. Friedberg’s PAPC constituted a "wish applicable to the circumstances that the incapable person expressed while capable" such that it should be applied in Mrs. Friedberg's current condition.

[66] In reaching its decision, the Board was required to consider the validity of the PAPC, the instructions contained therein (including a consideration of relevant extrinsic evidence to ascertain Mrs. Friedberg’s wishes) and their applicability in light of the relevant provision of the HCCA and the detailed test set out in Barbulov, supra. This would include an assessment of whether there is relevant evidence to displace the presumption of validity, particularly in the circumstances of this case, where the Appellants had brought to the attention of Dr. Korn at the outset, the circumstances which caused them to seriously doubt the intentions of Mrs. Friedberg regarding the PAPC.

Whether the Board Erred in Finding the Expression of a Clear Prior Capable Wish in the PAPC

[67] The Board found that that Mrs. Friedberg’s intentions and wishes, as contained in the PAPC, were clear and unambiguous, and expressed a prior capable wish. While the Board referred to and relied upon the principles set forth in the relevant jurisprudence, it found, on the evidence, that Mrs. Friedberg knew and approved of the contents of the PAPC.

[68] The Appellants submit that the issues, or the consequences for the individual, are very serious, and that where liberty and life of the person are stake, as they argue is the case here, the quality of evidence required to meet the civil standard on a balance of probabilities must be "strong and unequivocal": Starson v Swayzy, supra, para. 77; Stetler v. Ontario Flue-Cured Tobacco Growers' Marketing Board (2005), 2005 24217 (ON CA), 76 O.R. (3d) 321 (Ont. C.A.), paras. 75-79, leave to appeal to S.C.C. dismissed without reasons February 16, 2006, [2005] S.C.C.A. No. 428 [Stetler].

[69] In Barbulov, supra, para. 19, D. Brown J. outlined some of the relevant factors to be considered in determining whether a prior capable wish is contained in a PAPC. He held that the Board must ask:

Does this document express the capable wishes of the person with respect to treatment in particular circumstances? To conclude that the document does, the CCB must be satisfied on the evidence that the grantor understood what he was doing through the document – ie. he knew and approved of its contents and effects.

[70] To determine whether the person knew and approved of the contents of the PAPC, D. Brown J. applied principles applicable to the proof of wills, stating as follows in Barbulov, supra, at para. 45:

Counsel for the respondent referred me to the decision of the CCB in Re G. A., 2007 32891 (ON CCB), 2007 32891 (ON CCB) in which the Board held that if a party wanted to assert that the person who signed a power of attorney for personal care did not know its contents, that party would have to produce evidence to establish that point. I would not put the matter quite that way. I think the proper approach should draw upon principles applicable to the proof of wills: Feeney's Canadian Law of Wills, Fourth Edition, at s 3.1. Where a person seeks to rely upon a power of attorney for personal care as the expression of a prior capable wish of an incapable person, that person must demonstrate that the grantor not only possessed the requisite capacity to make the power of attorney, but also knew and approved of the contents of the document. As in the case of wills, a presumption operates that the contents of the power of attorney were known and approved if the document had been read over to the grantor, or if the contents were otherwise brought to his or her attention. This presumption, of course, can be overborne by evidence of circumstances that the grantor did not know or approve of the contents, with the result that the person advancing the power of attorney would need to satisfy the tribunal or court of the grantor's knowledge and approval of contents.

[71] D. Brown J. went on to set forth the questions that the Board must answer when faced with a power of attorney for personal care, as follows:

….The inquiry must always remain focused on the task mandated by the statute – does this document express the capable wishes of the person with respect to treatment in particular circumstances? To conclude that the document does, the CCB must be satisfied on the evidence that the grantor understood what he was doing through the document –i.e. he knew and approved of its contents and effects. If he or she did not, then I do not see how one could say that the power of attorney for personal care expressed the wishes of the person with respect to treatment, as required by section 5 of the HCCA.

[72] Thus, it must be determined whether the PAPC, in this case, expresses the capable wishes of Mrs. Friedberg and whether, on the evidence, it can be concluded that she knew and approved of its contents and effects. In this case, an inquiry must be made into whether there is any evidence of circumstances on which to conclude that Mrs. Friedberg did not know what she was doing through the document, i.e. she did not know or approve of the contents of the PAPC [Conway v Jacques, supra, para. 31].

[73] I find Barbulov, supra, to be of guidance in determining the issues before the Court. The evidence before the Board raises significant doubt as to the reasonableness of the Board's findings. There is substantial evidence which causes me to doubt that Mrs. Friedberg understood what she was doing through the PAPC and which also causes me to doubt that she knew and approved of the PAPC. This evidence includes: (i) the medical evidence regarding "artificial or heroic", (ii) Ms. Hisey’s evidence pertaining to the end of life clause (iii) Mrs. Friedberg’s religious values; (iv) Mrs. Friedberg’s thoughts in an analogous end of life context; (v) the internal inconsistency in the PAPC; and (vi) Mrs. Friedberg’s language difficulties.

[74] I will review that evidence below.

(i) The Board' s Findings regarding the Definition of "Artificial and Heroic"

[75] The Board held that the definition of "artificial", was in accordance with the Merriam Webster dictionary definition, namely "produced by humans, rather than naturally occurring" and held that this was supported by the medical evidence. In accepting this dictionary definition, they stated that there was no evidence to the contrary and that, accordingly, the dictionary definition evidence constituted the medical evidence on the subject of "artificial". On this basis, the Board concluded that the end of life clause was applicable in the circumstances where tracheostomy and feeding tubes were proposed.

[76] The Appellants argue, based on the above, that there is no evidence on which the Board could formulate a definition of artificial, and that their finding, therefore, constitutes an error of law, reviewable on the correctness standard.

[77] Dr. Korn produced medical evidence. She testified that there was no standard medical definition of "artificial or heroic measures" and that different doctors consider different measures "artificial" or "heroic" in different circumstances. It was her testimony that, in Mrs. Friedberg's particular case, there was disagreement among doctors as to whether continuing treatment was "heroic" or "artificial", such that it should cease if the PAPC were found to contain a binding prior capable wish. Her evidence in this regard is set forth at paragraphs 15 and 16, above.

[78] The only other evidence with respect to "artificial and heroic measures" was the non-medical evidence of Ms. Hisey, who testified that the terms had no legal definition, but were medical terms. She did not purport to include the dictionary definition of "artificial" in describing this clause to her clients, but in her general practice, advised her clients to seek clarification from a doctor. Further, she testified that she did not discuss the meaning of "artificial or heroic measures" with Mrs. Friedberg, nor did she discuss the myriad number of different scenarios she might encounter to which this phrase may apply, or the ways in which it may be applied.

[79] The evidence is not clear as to whether Mrs. Friedberg would have considered or understood that such interventions as are being sought to be applied in the circumstances of this case would be considered "artificial or heroic". Nor, based on the evidence before me, is it clear whether Mrs. Friedberg actually considered and understood the import of the clause contained in the PAPC.

(ii) Ms. Hisey's Evidence Pertaining to the End of Life Clause

[80] The Board accepted the evidence of Ms. Hisey that Mrs. Friedberg knew and approved of the contents of her power of attorney for personal care. They held as follows:

"We accepted HH's evidence as clear, cogent and compelling that FF knew of and approved of the contents of her POA. In weighing the evidence as a whole we found that the evidence of FF's children did not dispute their mother’s capacity at the time she signed her Power of Attorney for Personal Care.”

[81] From a review of Ms. Hisey’s file notes and from her testimony, it would appear that the predominant purpose of the 2001 and 2003 meetings between Ms. Hisey and Mrs. Friedberg was to draft or change Mrs. Friedberg’s will, and that the PAPCs were incidental or ancillary.

[82] Neither Ms. Hisey’s file notes nor her viva voce evidence suggest that Mrs. Friedberg or her husband specifically requested an end of life clause. Instead, Ms. Hisey’s evidence was that the end of life clause was standard in her firm’s boilerplate precedent PAPCs; this clause was automatically presented to all of the firm’s clients without instruction because it was presumed, based on Ms. Hisey’s evidence, that the majority of her clients wanted this provision.

[83] The Respondent submitted that Ms. Hisey was a very experienced counsel, and provided evidence of general practice suggesting that she always highlighted the end of life provision in PAPC documents and always informed clients that they could omit or amend any provision.

[84] The Board's finding that Mrs. Friedberg made a choice that conflicted with her religious beliefs when she signed the PAPC was based, principally, on Ms. Hisey’s evidence respecting her general practice. She had no specific recollection about her interactions with Mrs. Friedberg or the signing of the PAPC. Further, there were no corroborating notes or other evidence in this regard.

[85] Relying on general practice as evidence of what has occurred in a specific instance must be done with caution: Marshall v. Hett & Sibbald Ltd, 1932 209 (SK CA), [1932] 1 W.W.R. 520 (Sask. C.A.), para. 9. Further, caution must be exercised when relying on evidence of general practice when it is not corroborated by notes attributed to specific circumstances or related to specific individual events: R v. S.(C.), 2010 ONCJ 497, paras. 29-49, 86.

[86] All evidence adduced by Ms. Hisey with respect to discussions with Mrs. Friedberg relates to her "general practice". She had no personal recollection of meeting and discussing with Mrs. Friedberg regarding the PAPC. Ms. Hisey admitted that she did not meet with Mrs. Friedberg alone in 2001 and had no specific recollection of any discussion respecting the end of life clause with her. Similarly, her file notes of the meetings with Mrs. Friedberg were silent regarding the end of life clause.

[87] Ms. Hisey’s evidence concerning her general practice is not corroborated by her notes regarding Mrs. Friedberg. Her file notes in respect of the meetings with Mrs. Friedberg make no mention of the end of life clause. Indeed, she testified that where she did not have notes of the discussion, she would not have had those discussions.

[88] She had no notes with respect to any discussions regarding the PAPC, except for the names of those Mrs. Friedberg wished to designate as her powers of attorney. Her evidence regarding her note-taking indicates that if there were no notes, there would have been no discussion. Her only evidence with respect to her meetings with Mrs. Friedberg, particularly with respect to the PAPC and the end of life clause are based on her "general practice". Based on her general practice, she stated that she "would have" discussed the PAPC and the end of life clause when it was first drafted in 2001 and again when it was being signed in 2003. She further stated that her usual practice would be to explain what the document was in detail and that she does not always note that. She testified that the general discussion is a standard discussion and that her notes indicate the final conclusion of the discussion. She admitted that, in this case, the final conclusion, as noted in her file, was simply who would be appointed as powers of attorney. Even if Ms. Hisey adequately drew the end of clause provision to Mrs. Friedberg’s attention, there is little or no evidence to suggest that Mrs. Friedberg understood the ramifications of the provision. Indeed, based on her evidence at paragraph 22-24, above, I find it probable that Mrs. Friedberg would have been left with the impression that her attorneys retained discretion to make all end of life decisions.

[89] Given this evidence, and Ms. Hisey' s lack of notes and recollection, I find that the Board erred in placing significant weight on this general practice evidence and based thereon, concluding that Ms. Hisey’s evidence was “clear, cogent and compelling that [Mrs. Friedberg] knew of the contents of her [PAPC].”

(iii) Mrs. Friedberg's Religious Values

[90] The Board found, on the evidence before it, that Mrs. Friedberg made choices as regards the PAPC that conflicted with traditional Orthodox Jewish beliefs, and that, as a capable individual, she was entitled to do so.

[91] Ms. Hisey testified that it was not her general practice to canvass clients’ religious affiliations or to flag religion as a potential issue with respect to end of life clauses. She did acknowledge that if a client raised religious concerns and viewpoints, that would be something of particular note that she would note in her file as "that is very relevant… could be very relevant to the drafting of the document". With respect to Mrs. Friedberg, she admitted that there was no reference to discussions between them regarding her religious outlook on end of life decisions. She testified that this told her that "there weren't any". She further testified that there were no notes with respect to the circumstances under which the end of life decisions would be made and stated that "I don't have any notes dealing with such a discussion, therefore I would not have had those discussions".

[92] The consensus view in Orthodox Judaism as described by Rabbi Ochs and Rabbi Cohen is that medical intervention to preserve and prolong life will be used unless one has entered the dying process and is in excessive pain. While there is some variance of Orthodox views respecting initiation of life-preserving measures (such as the initial insertion of the tracheostomy and feeding tube in Mrs. Friedberg), once these measures are initiated, there is consensus in the Orthodox faith that they shall remain (unless they cause undue pain) and that deliberately removing them is tantamount to murder. While the rabbinical evidence indicates that end of life measures would only be considered when the individual has entered the dying process, and is in incessant, excruciating pain, the evidence indicates that, in Mrs. Friedberg's case, she had not entered a tangible dying process and there was no evidence that she was in incessant, excruciating pain, nor any pain.

[93] The evidence was clear that Mrs. Friedberg was a devout adherent to the Orthodox Jewish faith and that her religious values infused every aspect of her life. The evidence is clear that, throughout her life, she adhered to the beliefs and values of her faith and instilled them in her children. While it is possible that Mrs. Friedberg could have intended to deviate from her long-held views with respect to end of life decision-making, as was found by the Board, it is highly unlikely this was her intention given the consistent evidence regarding her level of religiosity and her decision to appoint her three children, raised by her in a strict Orthodox Jewish upbringing, as her attorneys for personal care.

[94] As stated by Doris Bistricer in her evidence, it is “inconceivable” that Mrs. Friedberg would have knowingly taken a step that would force the Appellants to contravene their own strongly held Orthodox Jewish values, as well as those of their mother, given the sacrifice and care with which Mrs. Friedberg adhered to her faith and with which she raised her children.

[95] I find this evidence raises doubt as to Mrs. Friedberg's understanding of the contents and effects of the end of life clause.

(iv) Mrs. Friedberg's Thoughts in an Analogous End Of Life Context

[96] As indicated at paragraph 27, above, Mrs. Friedberg was supportive of the end of life care (respirator and feeding tube for a prolonged period) provided to her son-in-law before he passed away in 1999. Notwithstanding the time lapse between those events and the PAPC, which the respondents argue is sufficiently significant so as to dismiss the evidence, I find the evidence to be persuasive in considering whether Mrs. Friedberg did understand and appreciate the effect and import of the end of life clause contained in the PAPC. Given the lack of evidence respecting Mrs. Friedberg’s thoughts on end of life medical decision-making, and given the similarity in circumstances, I find this evidence to be of significance in raising doubts as to her understanding of the import and effect of the end of life clause in her PAPC.

(v) Internal Inconsistency in the PAPC

[97] The PAPC contains two clauses that appear to be contradictory or in conflict. One provision gives the attorneys clear authority to make all personal care decisions respecting the cessation or continuation of measures whereby Mrs. Friedberg’s life would be artificially prolonged (see paragraph 9, above). The other provision removes discretionary authority to make decisions respecting the cessation or continuation of artificial measures to prolong life (see paragraph 8, above). In considering these clauses, I am cognizant of the testimony of Ms. Hisey regarding her general practice, as set forth at paragraphs 22-24, above. While there are no notes and there is no evidence of what she may have discussed with Mrs. Friedberg, her description of her general practice in explaining the end of life clause, as set forth in paragraphs 22-24, above, could very easily be interpreted as permitting her chosen attorneys final discretion in the application of the clause, rather than as tying their hands. In the circumstances, I find the clauses, considered in combination with the evidence of Ms. Hisey to be confusing and would render it difficult for Mrs. Friedberg to know and understand the content and legal effect of the PAPC taken as a whole.

(vi) Mrs. Friedberg's Language Comprehension/Difficulties

[98] While there is conflicting evidence regarding the extent of Mrs. Friedberg’s command of English, it was the evidence of the Appellant's that she was not perfectly fluent and did not have great understanding of medical, legal or finance-related matters. This fact, on its own, may not be sufficiently significant. However, this fact, in conjunction with the other evidence reviewed above, raises increasing doubt that Mrs. Friedberg had a clear understanding of the ramifications of the end of life clause contained in her PAPC.

(vii) Conclusion

[99] While each of these pieces of evidence, viewed individually, may be insufficient to support a finding that the Board erred in law and fact and that its conclusion was unreasonable in result in holding that Mrs. Friedberg expressed a prior capable wish in accordance with the PAPC, I am of the view that all of this evidence, considered together, is sufficiently compelling to raise significant doubt that Mrs. Friedberg knew, understood and approved of the contents and effects of the end of life clause contained in the PAPC. I find that the evidence, taken as a whole, was sufficiently compelling to rebut the presumption (as set out in Barbulov, supra, para. 45) that Mrs. Friedberg knew and approved of the end of life clause contained in that PAPC. I find, having considered all of the evidence, that the Board's finding to the contrary was an error in law and fact and unreasonable in result.

[100] While the Board acknowledged the existence of some of the important extrinsic evidence relevant to ascertaining whether Mrs. Friedberg expressed a prior capable wish, I find that the Board erred in failing to properly consider and appreciate its contextual importance to the ultimate issue, leading to a decision that fails to “fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir, supra, para. 47.

[101] The Board did not sufficiently consider the possibility that the presumption created by an end of life provision can be overborne by other compelling evidence, and did not adequately recognize the enhanced level of certainty required in the current circumstances given the grave consequences of its decision on Mrs. Friedberg (Starson v. Swayze, supra, para. 77; Stetler, supra). Simply put, the written wishes communicated in a PAPC do not automatically prevail (as stated by the Board); rather, they create a presumption that those are the wishes of the grantor, which can be rebutted by compelling extrinsic evidence to the contrary.

[102] Accordingly, I find that the Board erred in its conclusion, based on its assessment of the whole of the evidence before it, that the PAPC, and the end of life clause contained therein, expressed Mrs. Friedberg's prior capable wish applicable to the circumstances. I find that the Board's decision was unreasonable. I find that the presumption of validity arising from the existence of the end of life clause in the PAPC and Mrs. Friedberg's opportunity to read the PAPC and her signature thereon, is displaced or overborne by the significant evidence before the Board which causes me to conclude that it was unreasonable for the Board to conclude, from the whole of the evidence before it, that the PAPC signed by Mrs. Friedberg expressed her prior capable wish as applicable to the circumstances.

Whether the Board Erred in Concluding That Such Expressed Wish in the PAPC Was Applicable in Mrs. Friedberg Current Circumstances

[103] Given the above regarding the Board's finding, it is unnecessary to determine the applicability to Mrs. Friedberg’s circumstances at the time of the hearing.

[104] I will, nevertheless, provide my decision in this regard. I find that the Board also erred in law and fact and was unreasonable in result in determining that the prior capable wish in Mrs. Friedberg's PAPC was applicable to her circumstances at the time of the hearing.

[105] Dr. Korn’s recommendation was to maintain the tracheostomy and feeding tubes because their removal would trigger Mrs. Friedberg’s painful and difficult demise and that these measures, including the antibiotics, which were given as necessary, were not heroic or artificial. While Dr. Korn admitted that the measures were “heroic” and “artificial” when they were initially inserted into Mrs. Friedberg in Florida, it was her evidence that maintaining the current measures is not “heroic” or “artificial”.

[106] Although Dr. Korn admitted that the medical definition of “artificial or heroic measures” is subjective and that different doctors consider different measures “artificial” or “heroic” in different circumstances, the Board erred in dismissing Dr. Korn’s views and replacing them with a dictionary definition of “artificial”. For the reasons set forth herein and above, at paragraphs 78-82, I find that, in this regard, the Board erred.

Order

[107] Accordingly, based on all of the foregoing, I order that the decision of the Board be quashed and that, in its place, this Court finds that Mrs. Friedberg did not express a prior capable wish in the PAPC and, therefore, that there was no prior capable wish applicable to her circumstances.

Carole J. Brown J.

Date: April 3, 2013