When Attempting to Save Lives Costs, Personally

Others, usually outside of the profession, often wonder what value lawyers provide to society. We don’t save lives, the way other professions do, and our social utility isn’t always as tangible.

I often argue that we do indeed save lives, at least the social aspects of it that many members of the public face. We also drive the economic engines in a capitalistic society, and allow for growth that ultimately benefits everyone when properly oriented and efficient.

Occasionally lawyers do save lives, quite literally. And sometimes doing so is deemed by the courts as inappropriate for them to do. The Ontario Court of Appeal’s recent decision in Ferreira v. St. Mary’s General Hospital upheld an unusual cost award against a lawyer personally in their attempt to keep their client on life support.

The case involves a personal injury action, where the plaintiff subsequently suffered a cardiac arrest and was left incapacitated. He suffered significant brain injury due to lack of oxygen as a result of this cardiac arrest, and was put on life support in the Intensive Care Unit (“ICU”).

There was no prospect of medical recovery, but apparently the plaintiff’s lawyer hoped for a recovery of another kind. The lawyer brought an application for an interim injunction which would restrain the Hospital from withdrawing life support from the plaintiff, as they had been instructed to do by his family. Aside from certain claims made under the Family Law Act, any damages to a deceased plaintiff in a personal injury action are quite negligible.

The plaintiff’s lawyer was initially successful in obtaining a temporary injunction on an emergency basis, but this was soon followed by an urgent telephone hearing where the reviewing judge was advised that the plaintiff was now brain dead. The interim injunction was set aside, the application was dismissed, and the plaintiff was removed from life support and passed away. The only remaining legal issue should have been one of costs.

Not so for the now-deceased plaintiff’s lawyer, who field a notice of appeal of the reviewing judge to the Ontario Court of Appeal. A costs hearing was heard anyhow in the interim, with $7,500 to each of the respondents, payable personally by the lawyer. The basis for this imposition of costs under Rule 57.07(1) was that the lawyer,

…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 Court of Appeal dispensed with the main part of the appeal rather briefly, because the plaintiff had no instructions to bring the appeal. Indeed, she could not have instructions as at this juncture her client was deceased, and there were no instructions otherwise from the family members who had actually opposed her in this matter. Rule 11 allows for a transfer or transmission as a result of death, but no Order to Continue had been obtained.

The relief sought in the appeal was also somewhat perplexing. Even if the reviewing judge’s order could be set aside, one of the inherent jurisdictional limits of the court is its inability to extend into the spiritual. In other words, the court had no power to bring the plaintiff back to life.

Of greater interest was the appeal of the costs award, as it scrutinized the propriety of the steps engaged in by the plaintiff’s lawyer. The basis for her position was justified by Rule 3.2-9 of the Ontario Rules of Professional Conduct, which states,

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.

The commentary to this Rule states,

[3] 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.
[emphasis added]

The appropriate manner to ensure that the client’s interests are not abandoned includes taking the appropriate steps for a lawfully authorized representative, in this case, under the Health Care Consent Act, 1996. No such steps were taken.

The lawyer also cited the Supreme Court of Canada’s decision in Canada (Attorney General) v. Federation of Law Societies of Canada, which describes at para 8, “the lawyer’s duty of commitment to the client’s cause” as “a a principle of fundamental justice.” The Court of Appeal rejected this submission,

[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 client’s “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 client’s 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.

Instead, the Court of Appeal referred to Rule 2.1-1 of the Rules of Professional Conduct,

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.

The court concluded that the plaintiff’s lawyer had seriously interfered with the administration of justice by acting without instructions, directly contrary to her deceased client’s family, and “did so when one of the most difficult, emotional, and personal of decisions was being undertaken by them.” These actions brought the justice system into disrepute.

The Supreme Court of Canada’s decision in Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin confirmed that award of costs personally against a lawyer is justified only where their actions have seriously undermined the authority of the courts or interfered with the administration of justice. This was one of these exceptional cases.

Rather than reversing the costs, the Court of Appeal increased it to $19,885.74 and $11,642.00, for each respective respondent. The costs in this case, of attempting to inappropriately save a life, was high indeed.