



COURT OF APPEAL FOR ONTARIO

CITATION: Ferreira v. St. Mary's General Hospital, 2018 ONCA
    247

DATE: 20180314

DOCKET: C64204

Juriansz, Miller and Nordheimer JJ.A.

BETWEEN

Fernando Ferreira

Applicant (Appellant)

and

St. Marys General Hospital and Dr. Christopher
    Hinkewich

Respondents

Jordan Palmer, for Georgiana Masgras, also acting in
    person

Daphne Jarvis, for the respondent, St. Marys General
    Hospital

Sarit Batner, for the respondent, Dr. Christopher
    Hinkewich

Heard: March 1, 2018

On appeal from the order of Associate Chief Justice Frank
    Marrocco of the Superior Court of Justice dated July 9, 2017 and of the costs
    order of Regional Senior Justice Harrison Arrell of the Superior Court of
    Justice dated November 28, 2017.

Nordheimer J.A.:

[1]

Ms. Masgras is a lawyer.  She purports to bring this appeal on behalf of
    Mr. Ferreira. As the background to this matter demonstrates, this is an unusual
    case that arises out of an unfortunate factual situation. The case revolves
    around a lawyers claim of authority to take steps on behalf of a client who is
    incapacitated. Mr. Ferreira was the client and Ms. Masgras was his lawyer. Ms.
    Masgras purports to appeal the order of Marrocco A.C.J.S.C. (the reviewing
    judge) as it relates to a decision to set aside an interim injunction that
    prohibited the removal of Mr. Ferreira from life support. She also appeals the
    costs order made against her personally by Arrell R.S.J. (the application
    judge). As I shall explain, while she has the right to do the latter, she does
    not have the right to do the former.

Background

[2]

In December 2016, Mr. Ferreira was in a motor vehicle accident. He
    retained Ms. Masgras in respect of his claims for compensation for neck and
    lower back pain and related injuries.

[3]

On July 3, 2017, Mr. Ferreira was quite unexpectedly found in cardiac
    arrest at his home. EMS personnel were able to restore his pulse, and brought
    him to St. Mary's General Hospital in Kitchener ("the Hospital"),
    where he was provided with life support in the Intensive Care Unit (ICU).

[4]

Over the following days, it became clear that Mr. Ferreira had suffered
    a very significant brain injury as a result of a lack of oxygen to his brain caused
    by the cardiac arrest. His condition continued to deteriorate in spite of the
    intensive care provided. There was no prospect of recovery.

[5]

After consultations with the physicians involved and Mr. Ferreiras
    family, on July 6, Mr. Ferreiras wife made the decision to remove Mr. Ferreira
    from life support. No family member, of the over 15 in attendance, nor any of
    the medical professionals, thought that this was the wrong medical decision or
    inconsistent with Mr. Ferreiras wishes.

[6]

As is legally required, the Trillium Gift of Life agency (TGOL) was
    contacted and advised of Mr. Ferreira's imminent death. Further discussions
    between TGOL and the family on July 7 led to a decision to offer organ
    donation. In coordination with TGOL, the withdrawal of life support was scheduled
    to take place in the morning of Saturday, July 8 to allow the broader family to
    gather to support each other and to pay their respects.

[7]

During this time, Ms. Masgras became aware of Mr. Ferreiras condition.
    Both she and her husband, a chiropractor who was treating Mr. Ferreira, contacted
    Mr. Ferreiras wife and urged her to reconsider the decision to remove Mr.
    Ferreira from life support. They also contacted members of Mr. Ferreiras
    family, through a friend of Mr. Ferreiras, to urge the same thing.
    Notwithstanding these entreaties from Ms. Masgras, the family did not change
    their minds.

[8]

Convinced that the decision to remove Mr. Ferreira from life support
    needed to be given further consideration, Ms. Masgras decided to bring an
    application for an interim injunction restraining the Hospital from withdrawing
    Mr. Ferreira from life support.

[9]

In furtherance of this application, at or around 7:00 p.m. on Friday,
    July 7, Ms. Masgras contacted the duty judge line for Central South Region. She
    was put in touch with a trial co-ordinator. When the trial co-ordinator learned
    of the relief being sought, she advised Ms. Masgras that the matter could be
    put in front of a judge immediately once the application materials were ready.
    She also told Ms. Masgras that she needed to serve the respondent with the
    application materials before it would be considered by a judge.

[10]

Ms.
    Masgras spent the next number of hours preparing the application materials.
    Around 3:00 a.m., she arranged to have some application materials served on a
    nurse at the ICU in the Hospital. The materials were then sent by email to the
    court. Ms. Masgras did not serve Mr. Ferreiras wife with the materials or advise
    her of the proposed application.

[11]

At
    approximately 9:00 a.m. on Saturday, July 8, Ms. Masgras re-attended at the ICU
    and advised the respondent, Dr. Christopher Hinkewich, the physician most
    responsible for Mr. Ferreira, that she had the application judge on the phone.
    She told Dr. Hinkewich that the application judge had made a verbal order not
    to remove Mr. Ferreira from life support.

[12]

In
    light of the verbal order, Dr. Hinkewich retained counsel. The TGOL physicians,
    who were there to perform the organ donations, left. The family were told of
    this development. They were upset and confused. Later that day, Ms. Masgras
    served the formal injunction order, and later that evening she served copies of
    her application record.

[13]

Mr.
    Ferreiras condition continued to deteriorate. Brain death seemed possible, and
    testing was initiated to determine whether it had occurred. If brain death had
    occurred, harm to Mr. Ferreiras organs preventing their donation was a real
    possibility. As a result, on Sunday, July 9, Dr. Hinkewichs counsel brought a
    motion to vary the injunction order.

[14]

The
    motion was heard that day by the reviewing judge on an urgent basis by
    telephone. Ms. Masgras participated in the motion, as did counsel for the
    Hospital and for Dr. Hinkewich. During the hearing, the court was advised that
    Mr. Ferreira had been declared brain dead. The reviewing judge set aside the
    interim injunction and dismissed the application. He ordered that the costs of
    the application, including the costs of the motion to vary, be reserved to the
    application judge.

[15]

The
    order of the reviewing judge was immediately communicated to the respondents.
    Mr. Ferreira was removed from life support and he passed away. The organ
    donation was accomplished.

[16]

On
    August 18, 2017, Ms. Masgras filed a notice of appeal from the order of the
    reviewing judge with this court. The notice of appeal seeks to have the order of
    the reviewing judge set aside. The notice of appeal also seeks a series of
    orders that are best described as declarations, including an order that Ms.
    Masgras had standing in the matter of whether Mr. Ferreiras life support
    system should be maintained or removed.

[17]

In
    light of the appeal, Ms. Masgras sought to adjourn the costs hearing that was
    scheduled to be heard before the application judge on October 11, 2017. Ultimately,
    the costs hearing was held on October 27. At that hearing, all counsel agreed
    that further oral submissions were not necessary and that the costs could be
    determined on the basis of the written materials.

[18]

The
    respondents sought their costs of the application on a substantial indemnity
    basis against Ms. Masgras personally. Dr. Hinkewich sought costs in the amount
    of $20,796.52. The Hospital sought costs in the amount of $20,048.46. On November
    28, 2017, the application judge awarded costs of $7,500 to each of the
    respondents, payable by Ms. Masgras personally.

[19]

In
    giving his reasons, the application judge said, at para. 29:

I 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.

The Main Appeal

[20]

The
    main appeal, that is the appeal from the order of the reviewing judge, can be
    dealt with briefly. It cannot succeed for two fundamental reasons. First, Ms.
    Masgras had no instructions to bring this appeal. Indeed, she had no
    instructions to bring the underlying application. Further, the underlying application
    was stayed as a result of Mr. Ferreiras death by virtue of r. 11.01 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, unless and until an order to
    continue is granted under r. 11.02. No such order has ever been obtained.  Once
    death occurred, the right to bring this appeal vested in the estate trustee. Consequently,
    this appeal is improperly constituted as it has not been brought by the estate
    trustee nor has it been assigned by the estate trustee to Ms. Masgras.  As a
    result, the appeal must be quashed.  Alternatively, the underlying application
    must be dismissed pursuant to r. 15.02(4) as it was commenced without Mr.
    Ferreiras authorization.

[21]

Second,
    and in any event, as is apparent from the facts, the appeal is now moot. Even
    if Ms. Masgras could bring a successful appeal to set aside the reviewing judges
    order (and it would not be successful), the result would be of no moment given
    that the Mr. Ferreira is deceased. Further, there is no basis for this court to
    give the type of declaratory orders that are sought in the notice of appeal.

[22]

The
    main appeal must therefore be dismissed.

The Costs Appeal

[23]

I
    begin by noting that Ms. Masgras was given an indulgence by this court. She was
    allowed to wrap her costs appeal into her main appeal even though she did not
    seek leave to appeal the costs award as required by s. 133(b) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43 and r. 61.03.1(17) of the
Rules
    of Civil Procedure
.

[24]

The
    costs decision directly engages the propriety of Ms. Masgras conduct
    throughout this entire proceeding. Ms. Masgras submits that she was entitled to
    take the steps that she did in obtaining the interim injunction, and then
    opposing the motion to set aside that order, and indeed then bringing an
    appeal, on the basis that she was obliged as Mr. Ferreiras personal injury
    lawyer in a separate matter, to protect his interests and further his cause.

[25]

In
    support of her position, Ms. Masgras relies on r. 3.2-9 of the
Rules of
    Professional Conduct

of the Law Society of Ontario, which reads:

When a client's ability to make decisions is impaired because
    of minority, mental disability, or for some other reason, the lawyer shall, as
    far as reasonably possible, maintain a normal lawyer and client relationship.

[26]

She
    also relies on commentary 3 to that Rule, but only on the final sentence that
    reads In any event, the lawyer has an ethical obligation to ensure that the
    client's interests are not abandoned. To put that statement into context, the
    whole of the commentary needs to be considered. The entirety of commentary 3
    reads:

A lawyer with a client under a disability should appreciate
    that if the disability of the client is such that the client no longer has the
    legal capacity to manage their legal affairs, the lawyer may need to take steps
    to have a lawfully authorized representative appointed, for example, a
    litigation guardian, or to obtain the assistance of the Office of the Public
    Guardian and Trustee or the Office of the Children's Lawyer to protect the
    interests of the client. In any event, the lawyer has an ethical obligation to
    ensure that the client's interests are not abandoned.

[27]

Ms.
    Masgras did not take any steps to have an authorized representative appointed.
    Indeed, it is not apparent on the record that Ms. Masgras sought or obtained
    any form of instructions from any next of kin of Mr. Ferreira, most notably,
    his wife. I note, on this point, that under the
Health Care Consent Act,
    1996
,
S.O. 1996, c. 2, Sched. A, s. 20, if a person is incapable
    with respect to treatment, consent may be given by a person designated in the
    section, one of which is the incapable persons spouse.

[28]

In
    fact, rather than attempting to obtain instructions from a next of kin, what is
    clear on the record is that Ms. Masgras acted in a manner that contravened the
    wishes of Mr. Ferreiras next of kin without ever advising Mr. Ferreiras wife,
    or any other member of his family, of her intended actions. More specifically,
    Ms. Masgras never told any member of Mr. Ferreiras family, that she intended
    to go to court and obtain an injunction to restrain the family from doing what
    they had decided to do, that is, to remove Mr. Ferreira from life support.

[29]

Ms.
    Masgras contends that her perceived obligation to protect Mr. Ferreira gave her
    the right to act in such a fashion. In addition to her reliance on the
Rules
    of Professional Conduct
,

to which I have referred above, Ms.
    Masgras also relies on the decision in
Canada (Attorney General) v.
    Federation of Law Societies of Canada
, 2015 SCC 7, [2015] 1 S.C.R. 401. In
    particular, Ms. Masgras relies on the various references in that decision to
    the lawyers duty of commitment to the clients cause.

[30]

Ms.
    Masgras fundamentally misunderstands the principles enunciated in that case. That
    decision does not support Ms. Masgras proposition that a lawyer is entitled to
    take whatever steps s/he wishes in furtherance of what the lawyer thinks is the
    clients cause. What Ms. Masgras appears not to understand is the fundamental
    principle that lawyers must act in accordance with the instructions of their
    clients.
[1]
Lawyers do not have a
carte blanche
to take steps of their own volition
    under the guise of furthering the clients perceived cause. In particular,
    lawyers do not have the right to institute proceedings without being armed with
    instructions from their clients to do so.

[31]

Simply
    put, Ms. Masgras had no authority to take the steps that she did. In doing so,
    Ms. Masgras breached the basic principles that apply to the conduct of lawyers,
    particularly their duty to act honourably.

[32]

In
    my view, that conclusion is sufficient to dispose of Ms. Masgras costs appeal
    against the application judges order requiring her to personally pay the costs
    of the injunction application. It is worth repeating that Ms. Masgras launched
    the application for an interim injunction without instructions. She did so
    without advising Mr. Ferreiras family of her intentions to do so. She also
    obtained the interim injunction without first giving any notice of her
    intentions to the Hospital or to the physician treating Mr. Ferreira, save and
    except for serving the application materials on a nurse in the ICU at 3:00 in
    the morning on the day that she obtained the
ex parte
injunction.
    Further, she obtained the extraordinary injunctive relief based on what the
    application judge found to be misleading material.

[33]

Ms.
    Masgras submits that her actions were undertaken in good faith and thus do not
    rise to the level necessary to warrant a costs award against her personally. In
    support of her submission, she points to the decision in
Quebec (Director
    of Criminal and Penal Prosecutions) v. Jodoin
, 2017 SCC 26, [2017] 1
    S.C.R. 478.

[34]

It
    is not clear to me how Ms. Masgras derives any support for her position from
    the decision in
Jodoin
. The authority of a court to award costs
    against a lawyer personally was reviewed in that decision. The general
    requirement was stated by Gascon J., at para. 29:

In my opinion, therefore, an award of costs against a lawyer
    personally can be justified only on an exceptional basis where the lawyer's
    acts have seriously undermined the authority of the courts or seriously
    interfered with the administration of justice.

[35]

In
    my view, the facts of this case amply establish that Ms. Masgras actions
    seriously interfered with the administration of justice. She acted without
    instructions. She acted in a manner that was directly contrary to the wishes of
    Mr. Ferreiras family. And she did so when one of the most difficult, emotional,
    and personal of decisions was being undertaken by them. Further, Ms. Masgras
    actions potentially interfered with the ability of another individual to
    receive what might well have been a life-saving organ transplant. Ms. Masgras
    misused the court process and, in doing so, she brought the integrity of the administration
    of justice into disrepute. On this point, I refer to rule 2.1-1 of the
Rules
    of Professional Conduct
which reads:

A lawyer has a duty to carry on the practice of law and
    discharge all responsibilities to clients, tribunals, the public and other
    members of the profession honourably and with integrity.

[36]

Ms.
    Masgras contends that she was just trying to protect her client and to ensure
    that all available information was considered and reviewed by an independent
    party, namely a judge, before the decision to remove Mr. Ferreira from life
    support was taken. Even if one could accept the
bona fides
of Ms.
    Masgras intentions, that objective had been met once the matter was before the
    reviewing judge. Yet Ms. Masgras did not let the matter go. Rather, she opposed
    the motion to set aside the interim injunction and she then appealed the
    reviewing judges decision. Indeed, she told the reviewing judge, right after
    he announced his decision, that she intended to appeal it. It is readily
    apparent from her conduct in this regard that Ms. Masgras was not interested in
    an independent review. Rather, she was intent on achieving her own personal
    objective.

[37]

As
    a final defence, Ms. Masgras raises various procedural complaints with respect
    to the manner in which the costs hearing took place. Specifically, she says
    that she was not made fully aware that costs would be sought against her
    personally and she was not present when the costs issue was determined. On
    the first point, the record clearly establishes that Ms. Masgras knew that
    costs were being sought against her personally. Indeed, her own costs
    submissions directly address that prospect. On the second point, Ms. Masgras
    agreed with the other counsel, after the costs hearing had been adjourned at
    least twice, that the application judge could proceed to determine the costs
    based on the written material. She cannot now complain about the process that
    she consented to.

[38]

Finally,
    in making the costs award against Ms. Masgras, the application judge considered
    the appropriate principles. There is no foundation for any challenge to his
    conclusion that Ms. Masgras conduct warranted a costs award against her
    personally. In fact, the application judge was more than generous towards Ms.
    Masgras, given her conduct, in fixing the costs in the amounts that he did. Ms.
    Masgras was entirely responsible for all of the costs incurred by Dr. Hinkewich
    and the Hospital. In my view, an order awarding them costs on a full indemnity
    basis would have been justified.

[39]

Nevertheless,
    Ms. Masgras was not deterred. Rather than learning her lesson, she continued
    with the main appeal. As should be apparent from the above, there was no merit
    to the main appeal as there is no merit to the costs appeal. I would dismiss
    Ms. Masgras appeal of the costs award.

[40]

The
    respondents are entitled to their costs of the appeals on a substantial
    indemnity basis given the conduct of Ms. Masgras. Ms. Masgras will personally
    pay the costs of the Hospital and Dr. Hinkewich. I would fix the costs of the
    Hospital at $19,885.74 and the costs of Dr. Hinkewich at $11,642.00. Both
    amounts are inclusive of disbursements and HST.

Released: RGJ MAR 14 2018

I.V.B. Nordheimer J.A.

I agree. R.G. Juriansz J.A.

I agree. B.W. Miller J.A.





[1]

I recognize that there are certain exceptions to the rule that
    lawyers must follow the instructions of their clients but those exceptions are
    not engaged in this case.


