Court File and Parties
COURT FILE NO.: CV-21-668875 DATE: 20210920
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an application pursuant to subsection 37(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A as amended.
BETWEEN:
DK Appellant
- and -
DR. ELAINE GILFOYLE, BH, and KHK Respondents
Counsel: Mercedes Perez for the appellant DK. Sam Rogers and Morgan Watkins for the Respondent Dr. Elaine Gilfoyle. Allan R. Horton for the Respondent BH. Maureen Addie for the Respondent KHK.
AND BETWEEN:
IN THE MATTER OF an application pursuant to subsection 37(1) of the Health Care Consent Act, 1996, S.O. 12992, c. 2, Schedule A as amended.
BH Appellant
- and -
DR. ELAINE GILFOYLE, DK and KHK Respondents
Counsel: Allan R. Horton for the appellant BH. Sam Rogers and Morgan Watkins for the Respondent Dr. Elaine Gilfoyle. Mercedes Perez for the Respondent DK. Maureen Addie for the Respondent KHK.
HEARD: September 20, 2021
PERELL, J.
ENDORSEMENT
[1] This is a procedural direction in two pending appeals to this Court. This is a tragically sad legal proceeding. I shall use pseudonyms for the appellants and for KHK, the infant whose medical treatment is the subject matter of the appeals. I direct that the parties use these pseudonyms in their court filings.
[2] The Appellants DK and BH, respectively, appeal the September 7, 2021 decision of the Consent and Capacity Board. The Board found that DK and BH had not complied with the principles for substitute decision-making set out in s. 21 of the Health Care Consent Act, 1996.[^1] The Board directed DK and BH to consent to the treatment plan proposed for their one-year-old daughter, the respondent KHK, by the respondent Dr. Elaine Gilfoyle.
[3] KHK is a patient at the Hospital for Sick Children, Toronto. Dr. Gilfoyle leads the treatment team. KHK suffered a catastrophic brain injury. KHK is in a coma in the hospital’s intensive care unit with no prospect for meaningful recovery. Dr. Gilfoyle’s treatment plan for KHK is: (a) discontinuance of artificial nutrition, hydration, and desmopressin; (b) no CPR; and (c) the provision of palliative care.
[4] It is Dr. Gilfoyle’s opinion that KHK’s best interests require allowing her to die. DK and BH disagree. The Board directed that if DK and BH do not comply and consent to Dr. Gilfoyle’s treatment plan by 5:00 p.m. on September 10, 2021, they would cease to be KHK’s Substitute Decision Makers. The Board’s order is automatically stayed by the appeals.
[5] On their respective appeals, the Appellants DK and BH, respectively request:
an extension of time for service and filing of this notice of appeal and the certificate respecting evidence, if necessary;
an extension of time for service and filing of the appeal record and transcript, if necessary;
an extension of time for perfecting this appeal, if necessary;
if the appellant is unable to retain counsel, an order appointing amicus curiae to assist the Court with perfecting the appeal and making submissions in favour of the appellant’s position;
that the decision of the Board be quashed and that, in its place, this Honourable Court find that the appellant has complied with the principles for substitute decision-making set out in section 21 of the Health Care Consent Act, 1996 and that no directions pursuant to sections 21 and 37 of the Health Care Consent Act, 1996 are required;
in the alternative to paragraph 5, above, that this Honourable Court make an order remitting this matter back to the Board for a new hearing, in whole or in part, in accordance with such directions as this Honourable Court considers necessary and appropriate;
an order staying the Board’s decision dated September 7, 2021 pending the hearing and determination of this appeal, if necessary;
the appellant’s costs of this appeal; and
such further and other relief as the appellant or his counsel may advise and this Honourable Court may permit.
[6] At the hearing before the Consent and Capacity Board, Maureen Addie was appointed amicus for the infant KHK. Pursuant to a legal aid certificate, Mercedes Perez represented DK. Pursuant to a legal aid certificate, Allan R. Horton represented BH.
[7] Ms. Addie, Ms. Perez, and Mr. Horton do not have legal aid certificates for the purposes of the appeals.
[8] I have read the decision under appeal, and I am satisfied that the appointment of amicus curiae as a friend of the court to advance the arguments for DK, BH, and KHK is absolutely necessary and appropriate. The appointment of amicus is in the interest of justice so that necessary assistance can be provided and all remaining steps as they relate to this appeal, can be completed fairly and quickly.
[9] I was advised that KHK is in critical but stable medical condition. The Board regarded the circumstances of the case as urgent and held hearings over the weekend. The respondents on the appeals, Dr. Gilfoyle and KHK regard the resolution of the appeals as urgent. While they disagreed that the appeals should be scheduled as urgent matters, Ms. Perez, and Mr. Horton did not disagree with Ms. Addie’s submission that the appeals should not await the outcome of applications to Legal Aid Ontario.
[10] Ms. Addie submitted, and I agree with her, that whatever the outcome of the appeals, it was urgent from several perspectives that the present uncertainty about the treatment plan for KHK be resolved as soon as possible.
[11] Empathy for the plight of parents and child and respect for the human dignity of KHK require that the appeals be expedited, and that Ms. Perez and Mr. Horton immediately focus their attention on perfecting and arguing the appeal. The circumstances are exceptional, and the appointment of amicus is essential for the court to adequately discharge its judicial functions to consider fully KHK’s best interests.
[12] DK and BH desire to be represented, and the interests of justice warrant that they be represented litigants. It is not in the interests of justice that DK and BH be self-represented. The circumstances are such that Ms. Addie’s, Ms. Perez’, and Mr. Horton’s assistance is immediately needed and none of the parties or the court can suspend this matter waiting for an application to be made for a decision from Legal Aid Ontario.
[13] I, therefore, direct that Ms. Addie, Ms. Perez, and Mr. Horton be appointed amicus curiae for this appeal pursuant to Rule 13.02 of the Rules of Civil Procedure,[^2] and the inherent jurisdiction of the Superior Court.[^3]
[14] Having heard the submissions of counsel about a feasible and fair timetable for the appeals, I fix the following timetable:
Appellants’ Factums by October 15, 2021
Respondents’ Factums by October 22, 2021
No Reply Factums
Hearing (virtual courtroom) October 27, 2021
[15] I shall remain seized of this matter.
[16] The parties shall deliver their appeal materials in accordance with the Rules of Civil Procedure and file their appeal materials on Ontariocourts.caselines.com.
Perell, J.
Released: September 20, 2021
COURT FILE NO.: CV-21-668875 DATE: 20210920
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DK Appellant
- and -
DR. ELAINE GILFOYLE, BH, and KHK Respondents
AND BETWEEN:
BH Appellant
- and –
DR. ELAINE GILFOYLE, DK and KHK Respondents
ENDORSEMENT
PERELL J.
Released: September 20, 2021
[^1]: S.O. 1996, c. 2, Schedule A. [^2]: R.R.O. 1990, Reg 194. [^3]: Ducharme v. Hudson, 2021 ONSC 783; Lewis v. Dr. Karen Ng, 2019 ONSC 4980; Jewish Family and Child Service of Greater Toronto v. N.D., 2021 ONCJ 215; Morwald-Benevides v. Benevides, 2019 ONCA 1023; R v. Imona-Rusell, 2013 SCC 43.