Law Times

Law Times • march 26, 2018 Page 5 www.lawtimesnews.com Attempted to keep client on life support OCA refuses to set aside costs for lawyer BY GABRIELLE GIRODAY Law Times T he Ontario Court of Appeal has upheld a decision that a lawyer must personally pay the legal costs of a hospital and a doctor involved in a legal battle with her over her attempt to remove a client from life sup- port, saying she was "intent on achieving her own personal ob- jective." The case, Ferreira v. St. Mary's General Hospital, in- volves Georgiana Masgras, a Kitchener, Ont. lawyer, and her failed legal attempt to stop an incapacitated client, Fernando Ferreira, from being taken off of life support at St. Mary's Gen- eral Hospital. "In my view, the facts of this case amply establish that Ms. Masgras' actions 'seriously in- terfered with the administra- tion of justice.' She acted with- out instructions. She acted in a manner that was directly con- trary to the wishes of Mr. Fer- reira's family. And she did so when one of the most difficult, emotional, and personal of deci- sions was being undertaken by them," said the ruling by Justice Ian Nordheimer, with Justice Russell G. Juriansz and Justice Bradley Miller agreeing. "Further, Ms. Masgras' ac- tions potentially interfered with the ability of another individual to receive what might well have been a life-saving organ trans- plant. Ms. Masgras misused the court process and, in doing so, she brought the integrity of the administration of justice into disrepute," said the ruling. Masgras had acted for Fer- reira after he was in a vehicle collision in December 2016 in seeking compensation for inju- ries he sustained in the crash. In July 2017, Ferreira had a heart attack and was taken to hospital. While his family wanted him to be removed from life support and organ donation was planned, Masgras brought an application for an interim injunction stopping the hospital from taking Ferreira off life sup- port. The application was set aside and Ferreira was removed from life support, as his family want- ed, and he died. However, in August 2017, Masgras filed a notice of appeal seeking to have the order of the reviewing judge set aside, based on arguments that Masgras had standing around the issue of Ferreira's use of life support. She also sought to adjourn a costs hearing set for October, and that also failed, and she was ordered to personally pay $7,500 in legal costs for the hospital and a doctor involved in Fer- reira's care. The Ontario Court of Ap- peal upheld this decision, saying 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. In my view, that conclusion is sufficient to dispose of Ms. Masgras' costs appeal against the application judge's order requiring her to personally pay the costs of the injunction application," said the Court of Appeal ruling. "It is worth repeating that Ms. Masgras launched the ap- plication for an interim injunc- tion without instructions. She did so without advising Mr. Fer- reira's family of her intentions to do so." The ruling also said that "the application judge consid- ered the appropriate principles" when it came to the costs award. Robert Centa, managing part- ner of Paliare Roland Rosenberg Rothstein LLP, says the Court of Appeal's finding on Masgras' conduct is "incredibly troubling." "I think it's a very troubling decision and it is a stark remind- er that lawyers have obligations to their client and to the court that just have to come first," he says. "The importance of having client instructions cannot be overstated, the importance of ensuring that affected parties have notice of court proceed- ings can't be overstated. It's fun- damental, yet it's so important to what we do . . ." Centa says the case is a re- minder that, when lawyers face a difficult professional or ethical challenge, it's important to con- sult other members of the bar for guidance. "Sometimes, trying to solve these problems on your own can lead to mistakes being made," he says. Masgras said she plans to ap- ply for leave to appeal the mat- ter with the Supreme Court of Canada, and she said any fur- ther comment would be from her counsel, Eugene Meehan of Supreme Advocacy LLP, in Ot- tawa. "Lawyers are required to act in accordance with their clients' instructions. This case raises the thorny but significant issue of what lawyers are expected to do when they can't get instructions because their client is incapaci- tated," Meehan said in an email comment. Meehan said Masgras "want- ed to ensure that removing her client from life support was in his best interest." "The danger of an adverse costs award against a lawyer personally in these types of cir- cumstances is that it may cre- ate a situation where the fear of such an award conf licts with the fundamental duty of his or her calling. "Namely, the duty to pro- tect their clients' interests," said Meehan. LT NEWS I think it's a very troubling decision and it is a stark reminder that lawyers have obligations to their client and to the court that just have to come first. Robert Centa JUDICIAL VACANCY ONTARIO COURT OF JUSTICE BARRIE The Judicial Appointments Advisory Committee advises the Attorney General of Ontario on the appointment of Judges to the Ontario Court of Justice, and invites applications for a judicial position in Barrie. This appointment involves presiding over criminal law matters and also involves travel within the regional boundaries as assigned by the Regional Senior Justice and/or the Chief Justice. The minimum requirement to apply to be a Judge in the Ontario Court of Justice is ten years completed membership as a barrister and solicitor at the Bar of one of the Provinces or Territories of Canada. All candidates must apply either by submitting 14 copies of the current (July 2017) completed Judicial Candidate Information Form in the first instance or by a short letter (14 copies) if the form has been submitted within the previous 12 months. Should you wish to change any information in your application, you must send in 14 copies of a fully revised Judicial Candidate Information Form. If you wish to apply and need a current Judicial Candidate Information Form, or if you would like further information, please contact: Judicial Appointments Advisory Committee Tel: (416) 326-4060 Fax: (416) 212-7316 Website: www.ontariocourts.ca/ocj/jaac/ All applications, either sent by courier, mail or hand delivery, must be sent to: Judicial Appointments Advisory Committee c/o Ministry of Government Services Mail Delivery 77 Wellesley Street West, Room M2B-88 Macdonald Block, Queen's Park Toronto, Ontario, M7A 1N3 Applications must be on the current prescribed form and must be TYPEWRITTEN or COMPUTER GENERATED and RECEIVED BY 4:30 p.m. on Friday, April 13, 2018. CANDIDATES ARE REQUIRED TO PROVIDE 14 COPIES OF THEIR APPLICATION FORM OR LETTER. A Fax copy will be accepted only if 14 copies of the application or letter are sent concurrently by overnight courier. Applications received after this date WILL NOT be considered. The Judiciary of the Ontario Court of Justice should reasonably reflect the diversity of the population it serves. Applications from members of equality- seeking groups are encouraged. JUDICIAL VACANCY ONTARIO COURT OF JUSTICE OSHAWA The Judicial Appointments Advisory Committee advises the Attorney General of Ontario on the appointment of Judges to the Ontario Court of Justice, and invites applications for a judicial position in Oshawa. This appointment involves presiding over criminal law matters and also involves travel within the regional boundaries as assigned by the Regional Senior Justice and/or the Chief Justice. The minimum requirement to apply to be a Judge in the Ontario Court of Justice is ten years completed membership as a barrister and solicitor at the Bar of one of the Provinces or Territories of Canada. All candidates must apply either by submitting 14 copies of the current (July 2017) completed Judicial Candidate Information Form in the first instance or by a short letter (14 copies) if the form has been submitted within the previous 12 months. Should you wish to change any information in your application, you must send in 14 copies of a fully revised Judicial Candidate Information Form. If you wish to apply and need a current Judicial Candidate Information Form, or if you would like further information, please contact: Judicial Appointments Advisory Committee Tel: (416) 326-4060 Fax: (416) 212-7316 Website: www.ontariocourts.ca/ocj/jaac/ All applications, either sent by courier, mail or hand delivery, must be sent to: Judicial Appointments Advisory Committee c/o Ministry of Government Services Mail Delivery 77 Wellesley Street West, Room M2B-88 Macdonald Block, Queen's Park Toronto, Ontario, M7A 1N3 Applications must be on the current prescribed form and must be TYPEWRITTEN or COMPUTER GENERATED and RECEIVED BY 4:30 p.m. on Friday, April 13, 2018. CANDIDATES ARE REQUIRED TO PROVIDE 14 COPIES OF THEIR APPLICATION FORM OR LETTER. A Fax copy will be accepted only if 14 copies of the application or letter are sent concurrently by overnight courier. Applications received after this date WILL NOT be considered. The Judiciary of the Ontario Court of Justice should reasonably reflect the diversity of the population it serves. Applications from members of equality- seeking groups are encouraged. Untitled-3 1 2018-03-20 12:32 PM

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