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Ontario Court of Appeal refuses to set aside costs for lawyer who tried to keep client on life support

|Written By Gabrielle Giroday
Ontario Court of Appeal refuses to set aside costs for lawyer who tried to keep client on life support
Robert Centa says an Ontario Court of Appeal ruling is a reminder that when lawyers face a difficult professional or ethical challenge, it’s important to consult other members of the bar for guidance.

The 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 support, saying she was “intent on achieving her own personal objective.”

The case Ferreira v. St. Mary's General Hospital, involves 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 General Hospital.

“In my view, the facts of this case amply establish that Ms. Masgras’ actions ‘seriously interfered with the administration of justice.’ She acted without instructions. She acted in a manner that was directly contrary to the wishes of Mr. Ferreira’s family. And she did so when one of the most difficult, emotional, and personal of decisions 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’ actions potentially interfered with the ability of another individual to receive what might well have been a life-saving organ transplant. Ms. Masgras misused the court process and, in doing so, she brought the integrity of the administration of justice into disrepute.”

Masgras had acted for Ferreira after he was in a vehicle collision in December 2016, in seeking compensation for injuries 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 support.

The application was set aside and Ferreira was removed from life support, as his family wanted, 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 Ferreira’s care.

The Ontario Court of Appeal 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 application for an interim injunction without instructions. She did so without advising Mr. Ferreira’s family of her intentions to do so.”

The ruling also said that “the application judge considered the appropriate principles” when it came to the costs award.

“There is no foundation for any challenge to [the judge’s] conclusion that Ms. Masgras’ conduct warranted a costs award against her personally. In fact, the application judge was more than generous towards Ms. Masgras, given her conduct, in fixing the costs in the amounts that he did,” said the ruling.

“Ms. Masgras was entirely responsible for all of the costs incurred by [the doctor] and the Hospital. In my view, an order awarding them costs on a full indemnity basis would have been justified.”

Robert Centa, managing partner 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 reminder 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 proceedings can’t be overstated. It’s fundamental, yet it’s so important to what we do . . .”

He says the case is a reminder that when lawyers face a difficult professional or ethical challenge, it’s important to consult 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 appeal the Court of Appeal decision to the Supreme Court of Canada, and she said any further comment would be from her counsel, Eugene Meehan of Supreme Advocacy LLP, in Ottawa.

“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 incapacitated,” Meehan said in an email response to Legal Feeds.

“Lawyers have an ethical obligation to ensure that clients’ interests are not abandoned. Accordingly, this is the type of ethical issue that lawyers and academics will struggle with and there are no easy answers.”

Meehan said Masgras “wanted 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 circumstances is that it may create a situation where the fear of such an award conflicts with the fundamental duty of his or her calling. Namely, the duty to protect their clients’ interests,” said Meehan.




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