Ferreira v. St. Mary’s General Hospital, 2017 ONSC 6631
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FERNANDO FERREIRA, Applicant
Georgiana Masgras For the Applicant
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ST. MARY’S GENERAL HOSPITAL, Respondent
Daphne Jarvis, For the Respondent, St, Mary’s General Hospital
Sarit Batner and Sam Rogers, for Chris Hinkewich Intervener
HEARD: In Writing
The Honourable Mr. Justice H.S. Arrell
JUDGMENT ON COSTS
INTRODUCTION:
1Late in the evening of Friday, July 7th, 2017, an emergency application request came before me on an ex parte basis to enjoin St. Mary’s Hospital from withdrawing life support for Mr. Fernando Ferreira.
2Early in the morning of Saturday, July 8th, 2017, I issued such an order, based upon the application record filed before me at that time. I also ordered that the matter be returned to the Superior Court in Kitchener on Monday, July 10th, 2017 at 9:30 a.m. I further ordered that all materials in the application be served upon the respondent St. Mary’s Hospital, and Mr. Ferreira’s spouse.
3As a result of my order, counsel for the hospital, and the treating physician, were retained later in the day on Saturday, July 8th.
4On Sunday, July 9th, counsel for the hospital and Doctor brought an emergency motion by teleconference before Associate Chief Justice Marrocco to vary my order by rescinding it, which he quite correctly did, based upon the new information provided to him at that time. Life support was subsequently withdrawn and Mr. Ferreira died shortly thereafter.
5St. Mary’s Hospital and Dr. Hinkewich now seek their costs on a substantial indemnity basis from Ms. Masgras personally, being the lawyer who brought the original ex parte application on behalf of Mr. Ferreira. All counsel have filed extensive written material with case law outlining their positions on costs in detail. At a hearing on October 27th, 2017, all counsel agreed that further oral submissions were not necessary and that I should make my decision based upon the written material that had been filed. This is my decision.
FACTS:
6Ms. Masgras is a lawyer practicing in Kitchener. Mr. Ferreira was involved in a motor vehicle accident on December 17th, 2016. He retained Ms. Masgras to represent him in that motor vehicle accident for injuries he allegedly sustained.
7On July 3rd, 2017, Mr. Ferreira suffered a very severe heart attack and was hospitalized at St. Mary’s Hospital and placed on life support.
8The application received by me, early on Saturday, July the 8th, 2017, consisted of the notice of application, along with three medical legal reports, and an in home assessment report, all predating the heart attack and dealing with the injuries of Mr. Ferreira from the motor vehicle accident. I also received clinical notes and records from St. Mary’s Hospital and some notes and records from Spinetec Health Care Solutions, again well predating the heart attack. All of these records dealt with the injuries from the motor vehicle accident.
9In addition to the above, I received an affidavit of Omar Irshidat being the owner of Spinetec Heath Care Solutions, who swore to have knowledge of the matters he deposed to. This affidavit in reality was information Mr. Irshidat obtained from Ms. Masgras.
10A number of the facts in this affidavit have now turned out to be inaccurate and misleading. For example, the affidavit indicates:
a) This matter arises out of a motor vehicle accident that occurred on or about December 17th, 2016. That would appear to be untrue as the matter arose as a result of a heart attack suffered by Mr. Ferreira. There is no evidence that this heart attack was somehow related to the motor vehicle accident of December 17th, 2016.
b) The affidavit indicated that from discussions with Mr. Ferreira’s wife, Mr. Ferreira was in intensive care and “had lost his memory.” In fact, Mr. Ferreira had suffered a severe hypoxic brain injury and was on multiple forms of life support which I assume must have been known to Mr. Irshidat as he swore he had had discussions with Mr. Ferreira’s wife.
c) The affidavit states that the family decided they would not allow Mr. Ferreira to continue living considering he had lost his memory. In fact, the family of some 25 members were at the hospital and knew Mr. Ferreira would not want extensive or prolonged life support and that he had previously indicated he wanted his organs donated; and a transplant team was at the hospital on July 8th, 2017. Again, this would appear to have been information available to the Affiant had he in fact had discussions with Mr. Ferriera’s wife
d) The affidavit further indicated that the family consisted of Mr. Ferreira’s brothers, and his wife and that they had decided to donate his organs and that they had decided he should not continue to live without his memory. In fact the family was much more extensive than that and it was understood that Mr. Ferreira’s wishes were to make organ donations and he would not want to continue to live on prolonged life support.
e) The affidavit indicates that the decision to withdraw Mr. Ferreira’s life support was not carefully considered by Mr. Ferreira’s family. That facts would appear to be that the decision of the family was indeed carefully considered by some 25 members, most of whom were well aware of Mr. Ferreira’s desire to not live in a vegetative state, and if possible, to donate his organs. As well, there appears to have been an extensive consultation by the family with the various doctors and specifically the treating physician.
11I received a further supplementary affidavit early on July 8th, 2017 from Mr. Irshidat indicating he had served the application record on St. Mary’s Hospital at 1:40 a.m. on July 8th, 2017 in the accompaniment of Ms. Masgras. This affidavit indicates that while Mr. Irshidat was at the hospital, he saw, spoke, and touched Mr. Ferreira in ICU and Mr. Irshidat believes his pulse went up based on his observations of the life support machine, while speaking to him. Mr. Irshidat swore in his affidavit that he was firmly convinced that Mr. Ferreira could hear him, although he did not open his eyes.
12The record is now clear that Ms. Masgras did not have instructions on behalf of Mr. Ferreira or his family to bring the application that she did.
13The matter went before Associate Chief Justice Marrocco on Sunday, July 9th, 2017, once counsel for Dr. Hinkewich and the hospital had been retained. Additional material was filed by the doctor and the hospital, which clearly indicated that Mr. Ferreira’s condition had deteriorated even further and brain death was likely and that would likely compromise the donation of his organs. As a result of this additional information, and a more fulsome record, the Associate Chief Justice quite correctly rescinded my ordered and reserved the issue of costs to me.
POSITION OF THE PARTIES:
14St. Mary’s Hospital takes the position that as Dr. Hinkewich was the critical care physician, he was the more appropriate respondent who was an independent healthcare practitioner with privileges at the hospital. He was not a hospital employee. The hospital points out, that this was made abundantly clear to Ms. Masgras late in the afternoon of Saturday, July 8th, and yet she was still unwilling to discontinue the application against St. Mary’s Hospital. On Sunday, July 9th, Ms. Masgras amended her notice of application before A.C.J. Marrocco to add Dr. Hinkewich as a respondent but kept the hospital in as a respondent as well. As such, the hospital indicates counsel was forced to file material before A.C.J. Marrocco and make submissions. The hospital was successful and should be entitled to costs.
15Ms. Masgras takes the position that Dr. Hinkewich should not be entitled to costs as he was not a respondent, although classified as an intervenor by A.C.J. Marrocco and added as a Respondent in an amended application. She further argues that costs should only be awarded as compensation to a successful party and not to punish a lawyer. She urges this court to find that neither Dr. Hinkewich nor the hospital can be considered successful parties on the facts of this case. Ms. Masgras further submits that she was simply doing her duty as an officer of the court by making sure a life was not ended without the decision being carefully considered and she should not be punished in costs for taking such action given her position as Mr. Ferreira’s personal injury lawyer.
16Counsel for Dr. Hinkewich submits that they were forced to respond to this application and forced to make submissions before A.C.J. Marrocco. The Doctor has incurred costs. He was successful and should be reimbursed for those expenses.
ANALYSIS:
17A preliminary issue is Ms. Masgras’ position that Dr. Hinkewich does not have standing in this matter to seek costs. I disagree.
18Ms. Masgras did indeed serve the notice of application on Dr. Hinkewich and in that amended application, names him as a respondent. Dr. Hinkewich was therefore on notice that he was a respondent to the application and he did respond before A.C.J. Marrocco. Indeed, in the style of cause issued by A.C.J. Marrocco, the doctor is listed as an intervener, as the Associate Chief Justice was using the style of cause in the original application. The doctor’s information before A.C.J. Marrocco, through counsel, was important and fully canvassed by the Associate Chief Justice as set out in his endorsement. As such I am of the view that the doctor is entitled to costs.
19The fixing of costs in discretionary. I must consider what is fair and reasonable having regard to the factors set out in Rule 57 of the Rules of Civil Procedure. In particular I must have regard to “The conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding.” “Whether any step in the proceeding was improper, vexatious or unnecessary, or taken through negligence, mistake, or excessive caution.”
20Without doubt, this application raised issues of great importance being the life and death of Mr. Ferreira. The issue was of significant importance to Mr. Ferreira’s family who had traveled far to be at the hospital with him while he was taken off life support. The matter was urgent.
21It is trite law to state that an ex parte application is a very serious matter. The court relies upon full and proper disclosure of all relevant facts in the supporting affidavit. There is a heavy onus on counsel to make sure that all relevant facts are before the court. See 830356 Ontario Inc. v. 156170 Canada Ltd. [1995] OJ No. 687 at para 23.
22The Court of Appeal sets out a two part test in Galganov v. Russell (Township) 2012 ONCA 410 at para 18 and 22 regarding costs against a lawyer personally:
The first step is to inquire whether the lawyer’s conduct falls within rule 57.07(1) in the sense that it caused costs to be incurred unnecessarily. Rule 57.07(1) refers specifically to conduct that “caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default”. The court in Marchand held that mere negligence can attract costs consequences in addition to actions or omissions which fall short of negligence. The court confirmed that “bad faith” is not a requirement for imposing the costs consequences of rule 57.07(1) and concluded, at para. 122, that “[i]t is only when a lawyer pursues a goal which is clearly unattainable or is clearly derelict in his or her duties as an officer of the court that resort should be had to [r]. 57.07.”
The second step is to consider, as a matter of discretion and applying the extreme caution principle enunciated in Young, whether, in the circumstances, the imposition of costs against the lawyer personally is warranted. The “extreme caution” principle, as stated in Young, means that “these awards must only be made sparingly, with care and discretion, only in clear cases, and not simply because the conduct of a lawyer may appear to fall within the circumstances described in [r]ule 57.07(1)”: Carleton, at para. 15.
23I have concluded that this application was brought without instructions. It was also brought for relief that Mr. Ferreira’s family did not want, and they believed, quite correctly, Mr. Ferreira would not have wanted, had he been capable of knowing the complete picture of his medical condition and prognosis.
24I am satisfied that I would not have issued the order I did, had I been advised of all of the facts.
25I am also satisfied that the hospital and Doctor were slow to engage counsel having been served with the application record in the early morning hours of July 8, 2017, in what was obviously a situation where time was of the essence.
26The Court of Appeal instructs that it is inappropriate for a lawyer to commence an action without instructions from a client competent to instruct. See Salisbury v. Sun Life Assurance Company of Canada, 3013 ONCA 182 at para. 3.
27I accept the reasoning in 1985 Sawridge Trust v. Alberta (Public Trustee), 2017 ABQB 539 at para.121, 122, 138 where the learned judge stated:
[121] I reject that ‘litigating from one’s heart’ is any defence to a potential costs award vs a lawyer, or for that matter from any other sanction potentially faced by a lawyer. Lawyers are not actors, orators, or musicians, whose task is to convey and elicit emotions. They are highly trained technicians within a domain called law. A perceived injustice is no basis to abuse the court, breach one’s oath of office, or your duties as a court officer.
[122] When a lawyer participates in abusive litigation that lawyer is not an empty vessel, but an accessory to that abuse. Persons are subject to sanctions including imprisonment where they engage in misconduct but are willfully blind to that wrongdoing. Lawyers have responsibilities and are held to a standard that flows from their education and training, and it is on that basis that Canadian courts give them a special trusted status. Abuse of that trust will have consequences.
[138] I adopt the reasoning of Graesser J in Morin v TransAlta Utilities Corporation that a costs award against a lawyer is appropriate where that lawyer engages in unauthorized “busybody litigation”. This is a deep and fundamental breach of a lawyer’s professional, contractual, and court-related obligations.
28I am cognizant of the caution set out in Young v. Young, [1993] 4 S.C.R. at pp135-136;
The basic principle on which costs are awarded is as compensation for the successful party, not in order to punish a barrister…Courts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular causes. A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties of his or her calling.
29I 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. Her conduct is in my view worthy of sanction and falls within Rule 57.07(1) and the case law. She interfered in a dynamic and very personal family decision without any authority and submitted misleading material to the court.
30I conclude that the amount of costs requested by the respondents is excessive and out of proportion to what was called for in this situation. As well the respondents should have had protocol in place to be able to respond to this situation much faster and thereby avoid incurring as much in costs as they did.
31As noted by Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3rd) 291 the fixing of costs involves more than merely a calculation using the hours docketed and the cost grid. He further stated in para. 24,
“In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”
32In following that instruction I therefore fix costs at $15,000.00 in total with each respondent receiving $7,500.00, inclusive of disbursements and taxes, payable by Ms. Masgras within 90 days.
Arrell, J.
Released: November 28, 2017
CITATION: Ferreira v. St. Mary’s General Hospital, 2017 ONSC 6631
COURT FILE NO.: 688/17
DATE: November 28, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FERNANDO FERREIRA
- and -
ST. MARY’S GENERAL HOSPITAL
JUDGMENT ON COSTS
HSA