Court File and Parties

COURT FILE NOS.: CV-19-00003008-00ES and CV-18-00003059-00ES DATE: 20190430 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GLORIA STEIN Applicant/Moving Party – and – HELEN BRUNSWICK, FRIEDA OREN, MIRIAM STEIN and THE PUBLIC GUARDIAN AND TRUSTEE Respondents/Responding Parties

Counsel: John Adair and Arieh Bloom, for the Applicant/Moving Party Jan Goddard and Jessie Lamont, for the Respondents/Responding Parties Helen Brunswick and Frieda Oren

HEARD: February 19, 2019

DIETRICH J

Overview

[1] Miriam Stein is 90 years old and has had a percutaneous feeding tube since June 2015. Miriam receives all her nutrition and some medication through the feeding tube. It was inserted when Miriam began to have difficulty swallowing as a consequence of a stroke she suffered in 2009. The feeding tube has been replaced four times, most recently in June 2018.

[2] Miriam appointed her three daughters, Helen Brunswick, Frieda Oren and Gloria Stein as her attorneys for personal care, jointly and severally. Miriam is no longer capable of personal care decisions and her daughters disagree on the continued use of Miriam’s feeding tube. Gloria has always opposed its use while Helen and Frieda support its use.

[3] In January 2018, when the tube needed to be replaced, Gloria was in favour of a withdrawal of the tube and palliative care for Miriam. Her sisters preferred to follow the advice of Miriam’s attending physician, who was not recommending a palliative course of treatment based on Miriam’s health and circumstances at that time. He recommended that the tube be replaced.

[4] The attorneys for personal care participated in a day-long mediation with a view to reaching an agreement on the continued use of the feeding tube. The result was minutes of settlement (the “Minutes”). In the Minutes, each of the attorneys for personal care agreed to a process by which they would co-operate to obtain a baseline geriatric assessment of Miriam, by a mutually agreed upon geriatrician, who would be asked to provide options for their consideration regarding Miriam’s feeding tube. To this end, the parties agreed to compile mutually agreed questions for the geriatrician to consider as part of the assessment. Despite this effort, when the tube began to leak and a decision on its replacement became urgent, the attorneys for personal care could not agree.

[5] Helen and Frieda urged Gloria to consent to the replacement of the tube or waive her right to participate in this particular personal care decision only. Dr. Michael Bernstein, who was tasked with replacing the tube, would not replace the tube unless there was unanimous agreement among the attorneys for personal care. Ultimately, following the initiation of a court application for advice and direction by Helen and Frieda, Gloria resigned as an attorney for personal care. Miriam’s feeding tube, which by this time, had become completely blocked, was then surgically removed and replaced.

[6] Several months following the replacement of the feeding tube, Gloria raised the issue of an assessment of Miriam in accordance with the Minutes. Helen and Frieda arranged for a geriatric assessment of Miriam but did not follow the process articulated in the Minutes.

[7] Gloria brings this motion seeking an order that Miriam’s assessment be conducted in accordance with the Minutes, meaning that the assessment would specifically address the feeding tube.

[8] For the reasons that follow, I find that Gloria is not entitled to the order she seeks.

Issue

[9] At issue is whether Gloria, who resigned as an attorney for personal care, may seek to enforce the Minutes, by insisting on a geriatric assessment of Miriam that includes specific consideration of her feeding tube.

The Relevant Documents

[10] Miriam’s power of attorney for personal care, dated June 5, 1997, includes the following expressed wish:

I wish to make known my desire that my dying shall not be artificially prolonged. If at any time my attending physician determines that I am suffering from a terminal injury, disease or illness, and that my death will occur whether or not life sustaining procedures are utilized, and where the application of life sustaining procedures would serve only to artificially prolong the dying process, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally and with dignity, and with only the merciful administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort, care or to alleviate my pain. Such is my direction even though this may shorten my remaining life.

This statement is made after careful consideration and is in accordance with my strong conviction and beliefs.

[11] The Minutes are entitled “Minutes of Settlement Regarding Substitute Decision-Making for Miriam Stein.” The parties to the Minutes are Frieda, Gloria and Helen, who are defined as “sisters” and referred to as such throughout.

[12] The Minutes provide as follows respecting the geriatric assessment of Miriam and consideration of her feeding tube:

The sisters agree to cooperate with each other through counsel to obtain a baseline geriatric assessment of Miriam by a mutually agreed upon geriatrician, and shall agree, in advance of the assessment, what questions and information they will request, which shall include any options for their consideration about Miriam’s feeding tube.

[13] The Minutes also provide a six-step dispute resolution process should the parties be unable to agree.

Position of the Parties

Gloria’s Position

[14] Gloria asserts that the use of Miriam’s feeding tube runs contrary to the wishes Miriam expressed in her power of attorney for personal care. As such, she submits that the tube should be removed and a course of palliative care pursued instead.

[15] Gloria further submits that she resigned immediately when Helen and Frieda brought their court application for advice and direction on the replacement of the feeding tube. She asserts that she did so because she did not wish to litigate against her sisters and because she had the protection of the Minutes, which required a baseline geriatric assessment of Miriam, including options regarding the feeding tube. Gloria further asserts that her resignation as an attorney for personal care on June 13, 2018 does not vitiate the Minutes.

[16] Gloria further asserts that a court-ordered assessment in accordance with the Minutes is appropriate because: i) settlement agreements ought to be respected and enforced, especially in the context of family disputes; ii) a court-ordered assessment including an opinion on the feeding tube is the only way to achieve a result that will be respected by Miriam’s daughters and bring closure to the matter; and iii) there is no prejudice to Helen and Frieda in proceeding in this way.

[17] Gloria submits that despite the terms of the Minutes, Helen and Frieda have unilaterally assumed responsibility for identifying a geriatrician and setting the terms of reference for the assessment and have they not kept her apprised.

[18] Gloria submits that Helen and Frieda are usurping the court’s function by attempting to take control of the assessment process by booking an appointment with Dr. Carol Ott, when she does not approve their choice. She alleges that Helen and Frieda have resiled from the Minutes, which require them to obtain an assessment from a mutually agreed upon geriatrician.

Helen’s and Frieda’s Position

[19] Helen and Frieda submit that Miriam’s condition is not palliative. Each deposes that while Miriam no longer speaks, she does communicate with gestures and is able display emotion, including laughing at humourous scenes in movies and tearing up when a family member, whom she has not seen in a while, comes to visit. Helen submits that, as at June 8, 2018, Miriam could still walk and use the washroom with assistance. She paid attention to the entertainment offered to her at her Kensington Place residence and sometimes participated in bingo.

[20] Helen concedes that she and Frieda take a very different view to Gloria’s view regarding the removal of Miriam’s feeding tube. Helen and Frieda submit that they made good faith efforts to avoid litigating this matter, including a full-day mediation, contacting various geriatricians in an attempt to obtain an assessment of Miriam and agreeing to Gloria’s lawyer’s request to attempt to refer the decision to the Public Guardian and Trustee (the “PGT”) in accordance with section 20(6) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, which permits the PGT to make a treatment decision where equally ranked substitute decision makers disagree.

[21] Helen submits that despite their efforts at a full-day mediation, they were only able to agree on one thing: a process for gathering more information about Miriam’s condition and the feeding tube. This agreement was incorporated into the Minutes in respect of which no party received any consideration.

[22] Helen further submits that the Minutes were entered into by the parties as Miriam’s attorneys for personal care and in contemplation of the specific issue of whether the feeding tube should be replaced. She submits that it is for this reason that the Minutes are entitled “Minutes of Settlement Regarding Substitute Decision-Making for Miriam Stein.”

[23] Helen asserts that the Minutes do not mandate the attorneys for personal care to direct a geriatrician to consider the feeding tube. Their agreement is limited to an agreement among the attorneys to ask the geriatrician to offer options relating to the feeding tube for their consideration.

[24] Helen submits that, by May 17, 2018, with the assistance of the parties’ respective lawyers, the attorneys for personal care were able to agree on a list of questions for the assessing geriatrician. They also agreed on three geriatricians, Dr. Barry Goldlist, Dr. Barbara Clive and Dr. Dov Gandell. Two of these physicians declined to conduct the requested assessment of Miriam and the other, Dr. Gandell, did not respond to the request at that time.

[25] Helen further submits that after Dr. Goldlist declined the assessment in early June 2018, she and Frieda twice proposed to Gloria that she consider withdrawing from the decision-making regarding the replacement of Miriam’s feeding tube on an interim basis only. This action would be without prejudice to Gloria’s ability to continue to act as a decision maker on personal care issues.

[26] Helen also submits that, contrary to the terms of the Minutes, Gloria proposed that Dr. Bernstein contact the PGT to make the decision regarding the feeding tube on the basis that Miriam’s attorneys for personal care could not agree. Dr. Bernstein referred the decision to Miriam’s attending physician, Dr. Aaron Jesin. Because Dr. Jesin did not view the tube replacement decision to be a treatment decision, as contemplated by the Health Care Consent Act, and he was not recommending a palliative or other course of treatment at that time, the PGT did not have decision-making authority.

[27] When the matter became urgent, Helen and Frieda submit that, again, they asked Gloria to reconsider waiving her entitlement to participate in this discrete decision. Helen submits that Gloria would only agree to a withdrawal of her decision-making authority effective on the removal of the tube, in the hope that this tactic would then force Dr. Jesin to have to request consent to the re-insertion of the tube. The re-insertion of the feeding tube, constituting a “treatment decision”, in accordance with the legislation, could then be directed to the PGT because Miriam’s attorneys for personal care would not be able to agree.

[28] Helen and Frieda submit that, by this time, they had no option but to act in Miriam’s best interests and bring their application for advice and direction. In their application, they sought to have Gloria’s rights as an attorney for personal care suspended until the pressing decision relating to Miriam’s feeding tube could be made.

[29] Gloria’s resignation as an attorney for personal care followed immediately on June 13, 2018, without qualification. Accordingly, Helen and Frieda submit that the Minutes were then vitiated because Gloria had entered into them in her capacity as an attorney for personal care, as did Helen and Frieda. They all did so specifically in contemplation of decision making relating to the feeding tube. Once the feeding tube had been replaced, Helen and Frieda submit that the Minutes became moot.

[30] Helen further submits that it was only after Miriam fractured her femur, some months three later, that Gloria again raised the issue of the geriatric assessment, citing the Minutes and the need for Helen, Frieda and Gloria to cooperate in this regard. Helen and Frieda submit that they re-engaged with Gloria because they agreed that an assessment of Miriam would be appropriate as she had not been assessed for two years. Helen and Frieda proposed Dr. Gandell, whom they had contacted in the spring at which time he was provided with agreed-upon list of questions, but they had had no reply.

[31] Helen further submits that she and Frieda did not agree with Gloria that the assessment should be directive respecting palliative care. They also did not agree that the assessment should include options relating to Miriam’s feeding tube. Accordingly, they provided Dr. Gandell with a more general letter of request. Helen deposed that she was not optimistic that Dr. Gandell would respond to open ended questions about the feeding tube given that three geriatricians had already declined to undertake an assessment that involved such questions.

[32] Helen submits that when Dr. Gandell declined to perform the assessment, she contacted Dr. Sidney Feldman (Medical Director, Homes of the Aged, Executive Medical Director Residential and Aging at Home Program and Chief, Department of Family and Community Medicine at Baycrest), on December 11, 2018, using a similar general letter of inquiry. He too declined to perform the assessment. Helen submits that Helen and Frieda then asked Dr. Jesin to make a referral to Dr. Ott, which he did. Dr. Ott had conducted a geriatric assessment of Miriam in 2016. They apprised Gloria of the date on which Dr. Ott would assess Miriam.

Enforceability of the Minutes - Analysis

[33] On the evidence, the creation of the Minutes did not follow a negotiated settlement at the end of the mediation. Precisely how Miriam’s feeding tube would be managed by the attorneys for personal care remained an open question. Rather than creating legal relationships among the parties, the Minutes simply reflect the things that the attorneys for personal care were able to agree on; that is, a process for resolving disputes that arose in the context of them making decisions relating to Miriam’s feeding tube. Once Gloria resigned, this dispute-resolving framework had no purpose.

[34] I find that the agreement among the parties as evidenced in the Minutes is not a legally binding agreement creating enforceable obligations. There was no offer and acceptance and no consideration. I find no evidence in support of an intention to create legal relations or certainty of terms. No enforceable contract exists at law. In any event, compliance with the Minutes has become impossible as a consequence of events that have overtaken them.

[35] An agreement to agree cannot be enforced where: i) the essential terms are not settled or agreed upon; ii) where the provisions of what is agreed are not sufficiently certain; and iii) where the parties intend that a preliminary agreement will not create a binding contract until a subsequent formal document is executed: Bawitko Investments Ltd. v. Kernels Popcorn Ltd., [1991] O.J. No. 495, 1991 CarswellOnt 836 (OMCA) at paras. 20-21. In the case at bar, the Minutes constitute a framework requiring the sisters to agree, in advance of an assessment of Miriam, on what questions they will ask of, and what information they will seek from, the physician performing the assessment. That information shall include any options for their consideration relating to Miriam’s feeding tube. The Minutes do not include any agreement on how the information received will be used or how the attorneys for personal care will make decisions based on the information received.

[36] I cannot agree with Gloria’s assertion that notwithstanding her resignation, the Minutes continued to be binding on the parties, and that she was relying on the enforcement of the Minutes when she agreed to resign. The enforcement of the Minutes was not possible following Gloria’s resignation. The agreed-upon process for resolving disputes among the attorneys for personal care relating to the feeding tube no longer applied. Helen made the decision that the feeding tube should be replaced and it was. The “Minutes of Settlement Regarding Substitute Decision-Making for Miriam Stein” as among Miriam’s then attorneys for personal care had no application. There was no dispute between the remaining attorneys for personal care, Helen and Frieda, regarding the replacement of the feeding tube.

[37] The Minutes, as originally envisaged could not be carried out for a number of reasons. One of the three parties, Gloria, resigned as an attorney for personal care and none of Dr. Goldlist, Dr. Clive, Dr. Gandell or Dr. Feldman would agree to conduct a geriatric assessment of Miriam on the terms requested. Without their agreement, the Minutes had little meaning and could not be performed. Further, Gloria resiled from the Minutes by deviating from the dispute resolution process and introducing the involvement of the PGT as means to resolve the dispute among the attorneys for personal care. This option was not one contemplated by the Minutes or one in respect of which the agreement of the other attorneys for personal care was sought in advance.

[38] I find that Gloria’s clearly stated and unequivocal resignation as one of Miriam’s attorneys for personal care resulted in a release of all of her rights as an attorney for personal care and that it was in that capacity that she entered into the Minutes. Following her resignation, I find that Helen and Frieda consulted with their sister Gloria in an attempt to identify a mutually acceptable geriatrician to conduct an assessment of Miriam after she broke her femur. Given their lack of success in finding a geriatrician who would conduct an assessment that would include options relating to Miriam’s feeding tube before it was replaced in mid-June 2018, it was reasonable for Helen and Frieda to exercise their discretion as attorneys for personal care to decline to request that the assessment sought in November 2018 include options relating to Miriam’s feeding tube.

[39] Gloria urges the court to order an assessment of Miriam that would include an opinion on her feeding tube. Gloria advocates that such an order is the only way to achieve a result that will be respected by Miriam’s daughters and bring closure to the matter. I do not share Gloria’s optimism on this point. On the evidence before the court, there is good reason to doubt that a geriatrician (who is acceptable to each of Helen, Frieda and Gloria) will agree to conduct such an assessment including an opinion on Miriam’s feeding tube. Even if a geriatrician were to agree to give such an opinion, there remains the real possibility that Miriam’s daughters would not unanimously accept or respect the geriatrician’s opinion and the dispute among them would continue. Prolonging this dispute is not in Miriam’s best interests.

[40] I do not doubt that Gloria cares deeply for Miriam and believes that personal care decisions that she would make for her mother as an attorney for personal care would be in her mother’s best interests. However, she must accept that her resignation as an attorney for personal care now precludes her from making personal care decisions or formulating questions to be put to physicians for assessment purposes. Helen and Frieda alone are now responsible for and authorized to make the decisions relating to Miriam’s personal care. The Minutes designed to deal with dispute resolution among equally ranked substitute decision makers had no application once Gloria resigned as an attorney for personal care.

[41] Helen and Frieda have an ongoing obligation pursuant to section 66(7) the Substitute Decisions Act, 1992 S.O. 1992, c. 30 to consult from time to time with supportive family members and friends of Miriam, like Gloria, who are in regular contact with Miriam. However, ultimately, Helen and Frieda have the authority to make the final decision.

[42] Helen and Frieda assert that such consultation has become impossible in recent months because there is an irreconcilable difference of opinion between the substitute decision makers, on one hand, and Gloria on the other, when it comes to Miriam’s feeding tube and whether Miriam’s condition is palliative. They ask this court to relieve them of the obligation imposed by them to consult with Gloria on matters relating to Miriam’s personal care. On the evidence, it appears that any agreement among Helen, Frieda and Gloria on Miriam’s feeding tube is remote at this stage. Given the history in this matter, more litigation between them seems far more likely. As noted by Justice Dunphy in his endorsement made with respect to costs in the application brought by Helen and Frieda, these proceedings have “spun out of control and lost a proper sense of proportionality.” Accordingly, I am prepared to order that Helen and Frieda are excused from further consultation with Gloria on the subject of Miriam’s feeding tube. This exemption from consultation does not apply to other personal care matters relating to Miriam’s care in respect of which Helen and Frieda are obligated to comply with section 66(7) of the Substitute Decisions Act, 1992.

Disposition

[43] This motion brought by the Applicant Gloria Stein is dismissed. Her application in this matter, bearing Court File No. 03-008/19, is also dismissed. An order shall issue exempting the Respondents Helen Brunswick and Frieda Oren from their obligation as attorneys for personal care, pursuant to section 66(7) of the Substitute Decisions Act, 1992, to consult with Gloria Stein with respect to Miriam’s percutaneous feeding tube, which consultation, without limiting the generality of the foregoing, shall include the replacement, maintenance or withdrawal of any existing feeding tube at any time; all decision making with respect to Miriam’s transportation to and from her residence and a hospital for the purpose of replacement, maintenance or withdrawal of a feeding tube; the selection of and consultation with health practitioners for the purpose of any and all treatments or personal care relating to Miriam’s feeding tube; and, generally, all aspects of Miriam’s care and treatment relating to her feeding tube at any time and from time to time.

Costs

[44] The Respondents Helen Brunswick and Frieda Oren have succeeded in this motion and shall be entitled to their costs payable by the Applicant Gloria Stein. If the parties are unable to agree on the matter of costs, the Respondents may make written submissions on costs, not exceeding three pages (excluding a costs outline or bill of costs) by May 15, 2019, following which the Applicant Gloria Stein may make written submissions on costs, not exceeding three pages (excluding a costs outline or bill of costs) by May 30, 2019. Reply submissions may only be made with leave.

Dietrich J. Released: April 30, 2019