Court File and Parties

COURT FILE NO.: 688/17 DATE: 20170710 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FERNANDO FERREIRA, Applicant AND: ST. MARY'S GENERAL HOSPITAL, Respondent

BEFORE: MARROCCO A.C.J.S.C.

COUNSEL: Sarit Batner and Sam Rogers, for Chris Hinkewich Intervenor Daphne Jarvis, for St. Mary’s General Hospital Respondent Georgiana Masgras, for the applicant

HEARD BY TELECONFERENCE: Sunday, July 9, 2017

Endorsement: Motion to Vary

[1] I am using the style of cause in the original application. I am hearing this matter on Sunday on an urgent basis.

[2] An attempt was made to obtain a review from the Court of Appeal of an interlocutory order from this court. The Chief Justice of Ontario contacted me and asked me to hear the matter as it was more properly brought in his view in the Superior Court as a motion to vary. I agree with the Chief Justice.

[3] Ms. G. Masgras, a member of the Bar, was retained by Mr. Fernando Ferreira to represent him in a matter arising out of a motor vehicle accident which occurred on December 17, 2016. After the car accident Mr. Fernando Ferreira was admitted to hospital and then released. He received outpatient treatment from Spinetec Capital Health Care Solutions for injuries caused by the accident.

[4] Mr. Ferreira was admitted to St. Mary’s General Hospital on July 4, 2017. He suffered a cardiac arrest sometime on the morning of July 3, 2017 and his brain was deprived of oxygen because of that cardiac arrest. Mr. Ferreira required multiple forms of life support to keep him alive and the prognosis was guarded. His family understood this and approximately 25 members of his family are at the hospital.

[5] Mr. Ferreira’s wife decided after consulting with her family that her husband would not want extensive or prolonged life support. Mr. Ferreira organs were donated; there had been a donor match for his kidneys. As a result, a transplant team attended at the hospital on July 8, 2017.

[6] Ms. G. Masgras, who as I said was acting for Mr. Ferreira in the car accident matter, made an ex parte application before a judge of the Superior Court on July 7, 2017 for an order prohibiting the withdrawal of life support. The application was supported by the affidavit of Mr. Omar Irshidat, the owner of the multidisciplinary clinic that was treating Mr. Ferreira for injuries received in the car accident.

[7] A judge of the Superior Court granted this order on Friday July 7, 2017 and ordered that the matter return before him on Monday July 10, 2017.

[8] According to an affidavit provided by Dr. Chris Hinkewich, the doctor most responsible for Mr. Ferreira, he has since the July 7, 2017 order, suffered further brain damage which substantially increases the likelihood of brain death. If Mr. Ferreira suffers brain death, then there will likely be, in the doctor’s opinion another cardiac arrest and organ failure and as a result the donor recipients matched to receive Mr. Ferreira’s kidneys may not receive them.

[9] As a result, this matter is urgent.

[10] Counsel Dr. Hinkewich and counsel for the respondent attempted to bring this matter back to the attention of the judge who granted the order on July 7, 2017 but were not assured by court staff that the materials would be brought to the judge’s attention today. In the circumstances, I have agreed to hear this application.

[11] I appreciate that a motion to vary should be brought in the county where the application was commenced. However, the purpose of the rules is to inform the court’s inherent jurisdiction in civil matters not to imprison it. Accordingly, I am hearing this matter in Toronto by teleconference.

[12] Ms. Masgras was given notice of this motion and participated in it. During argument, I was advised by counsel that Mr. Ferreira has deteriorated further and is now brain-dead which was the outcome which concerned Dr. Hinkewich. I asked for and received an email from counsel confirming that information. That email dated today at 3:21 PM is admitted as proof of the facts contained in it. It is admitted as a principled exception to the hearsay rule.

[13] Mr. Ferreira’s wife is a substitute decision-maker. No other person has claimed to be a substitute decision-maker nor has anyone produced a power of attorney to that effect or claimed to be a guardian for personal care. Dr. Hinkewich indicates that no member of the medical staff thinks that withdrawing ventilation is the wrong thing to do.

[14] In addition to his wife, Mr. Ferreira has children and a large extended family. Apparently, some family members present when the decision to withdraw ventilation was made had come from the United States, because they knew his death was expected. Dr. Hinkewich’s affidavit indicates that all agree with discontinuing mechanical ventilation and allowing Mr. Ferreira to pass as peacefully as possible.

[15] While I have not addressed Ms. Masgras’ standing to bring this application, my silence should not be interpreted as an acceptance of the fact that she has standing in this matter. I did not wish to resolve this matter on a point of procedure.

[16] The order prohibiting the withdrawal of Mr. Ferreira’s life support is varied. Specifically, it is set aside. The application brought by Ms. G. Masgras is dismissed. Costs of the application including this motion are reserved to the judge who granted the order prohibiting the withdrawal of life support.

MARROCCO A.C.J.S.C. Date: 20170710