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MENTAL INCOMPETENCY - Legal proceedings - Treatment - Consent

Thursday, April 05, 2018 @ 10:29 AM  


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Appeal by Ferreira's lawyer, Masgras, from an order setting aside an injunction and an award of costs against Masgras personally. In December 2016, Ferreira suffered injuries in a motor vehicle accident and retained Masgras as his lawyer in respect of his personal injury claim. In July 2017, Ferreira was found in his home in cardiac arrest. Efforts to restore his pulse were unsuccessful. He was placed on life support in intensive care. There was no prospect for recovery. Ferreira's wife consulted with physicians and made the decision to remove life support and offer organ donation. Masgras opposed the decision taken by Ferreira's wife and obtained an ex parte interim injunction on behalf of Ferreira, restraining the Hospital from withdrawing life support. Two days later, Ferreira's condition deteriorated to a point threatening the intended organ donation. The injunction was immediately set aside, life support was removed, Ferreira passed away, and the organ donation was accomplished. Costs were awarded against Masgras personally. Masgras purported to appeal on behalf of Ferreira, seeking declaratory relief and to have the costs order set aside.

HELD: Main appeal quashed and costs appeal dismissed. The main appeal could not succeed, as Masgras had no instructions to bring the underlying application or the appeal itself. Any right of appeal vested in an estate trustee upon Ferreira's passing. Moreover, the purported appeal was moot. The costs decision engaged the propriety of Masgras's conduct throughout the entire proceeding. Masgras's reliance on her role as Ferreira's lawyer failed to recognize the fundamental principle that she was required to act in accordance with her client's instructions. Not only did Masgras make no attempt to obtain instructions from next of kin, she acted in a manner contrary to their wishes, and without notice. Masgras acted without authority. The costs award was thus affirmed with costs of the appeal awarded against Masgras personally, on a substantial indemnity basis.

Ferreira v. St. Mary's General Hospital, [2018] O.J. No. 1355, Ontario Court of Appeal, R.G. Juriansz, B. Miller and I.V.B. Nordheimer JJ.A., March 14, 2018. Digest No. TLD-April22018008