Law Times

December 11, 2017

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Page 2 December 11, 2017 • Law Times NEWS his medical condition and prog- nosis," Arrell wrote. He found he would not have issued the original order, had he known all the facts. He added that it was "inappropriate" for a lawyer to start an action without instructions from a client com- petent to instruct, and that the respondents had incurred costs "needlessly" because of the ap- plication. Lawyers say judges rarely award costs personally against lawyers, and only do so cau- tiously given practitioners' du- ties to bring forward and argue unpopular or difficult cases. "It's quite extraordinary," says Paula Trattner, a partner with Osler Hoskin & Harcourt LLP who was not involved in the case. "[I]t's quite remarkable, be- cause you have a lawyer who is acting on a motor vehicle case for the patient and bringing an ex parte emergency application without instructions to do so." Trattner adds that lawyers who are going to bring applica- tions with respect to life support need to have expertise in health law and should understand the laws around consent and capac- ity. Rebecca Durcan, a partner at Steinecke Maciura LeBlanc LLP, says the decision highlights the role of the lawyer and the im- portance of ensuring they are operating based on instructions. "The role of a lawyer is not to independently reach out and act unilaterally," she says. "It really drives home the importance of remaining in that dispassionate, impartial, yet advocacy role." Masgras says that she did what she "believed was in the best interests of Mr. Ferreira," but declined to comment fur- ther. She is now appealing the de- cision that overturned her ap- plication, and seeking judicial guidance from the Court of Ap- peal as to whether a personal in- jury lawyer in her circumstances had standing in the matter. In her factum for the appeal, Masgras said that she did have standing to bring the appeal as costs were sought against her personally. She added that her appeal should be allowed be- cause she was never served with a notice of motion to vary and other notices. She also argued that there was actually no evidence in the hospital's record before the judge whether Ferreira's hospi- talization was related or not to the car accident. Lawyers Sarit Batner and Sam Rogers, who represented the doctor involved in the mat- ter, declined to comment as the matter is still before the court. In their factum, Batner and Rogers said Masgras does not have standing to bring her ap- peal, and that it is moot as Fer- reira is dead. "…Masgras did not have standing to bring the original application. She was a lawyer for Mr. Ferreira in unrelated per- sonal injury litigation that had nothing to do with his heart at- tack and resulting permanent brain damage," says the factum. "She did not have power of attorney over his personal care. She had no instructions form him or his wife or family. She should never have brought the application." Daphne Jarvis, who repre- sented the hospital in the matter, also declined to comment. LT Continued from page 1 'It's quite extraordinary' scenes against a lawyer who had seriously challenged their legal authority on behalf of disadvan- taged housing recipients whom the officials thought should sim- ply be following their dictates," he says. "So my information requests were exploring what I thought might be murky behind the scenes machinations." He requested all records that referred to the possibility of starting a LSUC complaint against him. The municipality found a number of emails from 2014 that were responsive to his request, but refused to re- lease them to the lawyer, saying the records contained solici- tor-client privileged informa- tion. So Klippenstein appealed to the Information and Privacy Commissioner of Ontario. He argued that the municip- ality had failed to establish the exemptions it was relying on to deny his request, and that it had not demonstrated that it proper- ly exercised its discretion in the matter. He also argued that solici- tor-client privilege did not apply to the records. In a final order, Gillian Shaw, an adjudicator at the commis- sion, found the municipality took the relevant factors into account when it decided not to disclose the records, and that it did not do so "in bad faith or for an improper purpose." In his representations, Klippenstein argued he was seeking accountability for what he viewed were tactics em- ployed by the municipality to intimidate and punish him. The municipality argued the records could no longer be used in con- junction with the LSUC com- plaint, as it had been dismissed. Shaw concluded that the municipality had not withheld the records to shield its alleged involvement in the complaint, and that it had properly exer- cised its discretion. Imran Ahmad, a partner with Miller Thomson LLP who was not involved in the case, says the decision shows that access to personal information is not ab- solute. "There are legitimate reasons why organizations can withhold [information]," he says. Klippenstein says, mean- while, this is likely the end of his efforts to access the records. "I wanted to understand what had happened in this pro- fessional complaint because the complaint itself seemed spuri- ous and bizarre," he says. LT End of road for access to records Continued from page 1 C A R S W E L L C U S T O M E R R E L A T I O N S 1 - 8 0 0 - 3 8 7 - 5 16 4 O R 4 1 6 - 6 0 9 - 3 8 0 0 © 2 0 1 7 T H O M S O N R E U T E R S C A N A D A L I M I T E D . A L L R I G H T S R E S E R V E D . M A N U F A C T U R E D I N C A N A D A . 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