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HEALTH CARE PROFESSIONALS - Courts - Jurisdiction - Parties - Standing

Tuesday, November 10, 2020 @ 6:07 AM  


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Appeal by Sorenson from the dismissal of her motion for an interlocutory injunction to prevent health care providers from providing her husband with medical assistance in dying. The husband, 83, was in poor health. He had been approved for medical assistance in dying. The appellant argued her husband was not capable to make decisions relating to his own self-determination. The motion judge was satisfied the appellant had established the existence of a serious issue and irreparable harm but was not satisfied the balance of convenience weighed in her favour. The appellant now wanted the court to issue an interlocutory injunction until her application for a declaration that her husband did not meet the eligibility requirements for medically assisted dying according to Canadian law could be heard. She argued that the Rule of Law required to ensure that the legal criteria for medically assisted dying was met.

HELD: Appeal dismissed. The appellant did not raise a justiciable issue. The court should not undertake a review of the assessments that found the appellant’s husband to be eligible for medical assistance in dying. The courts had no role in ensuring the assessments that determined applicants to be eligible were accurate and compliant with the law. It was clear Parliament fully intended, provided it was undertaken in a manner consistent with the law, the determination of eligibility should rest with authorized medical and nursing professionals, not with judges. Nova Scotia did not enact legislation that contemplated judicial intervention in assessing medical assistance in dying eligibility. The institutional capacity of the courts was also not well-suited to respond to the time-sensitive nature of challenges advanced in relation to medical assistance in dying eligibility assessments. The appellant did not have standing to attempt to prevent or delay the husband’s receipt of medical assistance in dying. She did not have private interest standing to challenge his eligibility. Her pleadings did not give rise to a justiciable issue. There was nothing in the legislation she relied upon that gave her standing to raise the issue she wanted to litigate. Her status as his spouse also did not give her private interest standing. The lack of a justiciable issue was fatal to the appellant’s claim that she had public interest standing. The motion judge did not err in refusing to grant the interlocutory injunction.

Sorenson v. Swinemar, [2020] N.S.J. No. 319, Nova Scotia Court of Appeal, M.J. Wood C.J.N.S. and C.A. Bourgeois and A.S. Derrick JJ.A., October 2, 2020. Digest No. TLD-November92020003