Tuesday, July 05, 2011

This Week At The Ontario Court of Appeal: 11-06-30

Each week Wise Law Blog reviews recent decisions by the Ontario Court of Appeal.

Elgner v. Elgner. An appeal on an interim spousal support order in a family law case. Mr. Elgner was 63, Ms. Elgner 62, and were married for 33 years before separating, having had three children (all now grown). Mr. Elgner was ordered to pay Ms. Elgner interim spousal support of $110,000 per month and retroactive spousal support of $3,360,000 for a period of twenty-three months. Mr. Elgner wished to appeal, and moved to file a notice of appeal as of right or, if leave to appeal was required, that leave be granted. The Divisional Court dismissed his motion, and Mr. Elgner then moved for a review of the Divisional Court order dismissing the part of his motion permitting him to appeal as of right. A panel of the Divisional Court dismissed that motion. Mr. Elgner then appealed to the Court of Appeal, arguing that he was entitled to appeal the interim order as of right and that leave to appeal was not required.

Mr. Elgner's argument was that the Divorce Act gives right of appeal for all orders, interim and final, made under it, and that since the Divorce Act is federal legislation it therefore is paramount over Ontario's Courts of Justice Act, which requires leave to appeal from interlocutory orders of the Superior Court of Justice. The Divisional Court's first order followed Kral v. Kral, wherein the Divisional Court had previously stated that according to the Divorce Act itself, appeals on Divorce Act orders were to follow the ordinary procedure governing appeals. The Divisional Court panel offered two opinions in concurring dissent: the majority, agreeing with the first order of the Court, and a second which stated that although he felt the panel was bound by Kral, that he had to express reservations about Kral's correctness, as he compared it to decisions in other provinces which had stated that in those provinces leave to appeal was not required for interim orders under the Divorce Act.

The Court of Appeal pointed out that Mr. Elgner's argument was based on s.21(1) of the Divorce Act ("an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act") but that he had failed to address s.21(6) ("Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed"), which mandates that the appeal right granted by the Divorce Act must be asserted in accordance with a province's standard regulation of appeals (as the Court stated that a plain reading made clear). The Court also dismissed Mr. Elgner's argument that a right of appeal was a substantive right rather than a procedural one on the basis that a leave to appeal requirement for interim orders in divorces did not make a final determination on each party's rights and obligations: matters dealt with by an interim order would more properly be decided at trial, and therefore a leave to appeal requirement was not a substantive harm in this instance. Accordingly, the Court dismissed the appeal. Read-the-whole-case rating: 3. A bit dry, but this is a somewhat novel issue and the Court's disposition of it is likely to stand for some time.

Rasouli v.Sunnybrook Health Sciences Centre. Mr. Rasouli was represented by his wife as litigation guardian; he had been hospitalized at Sunnybrook for surgery to remove a brain tumour, but post-operative complications led to him developing bacterial meningitis, and the infection eventually caused severe brain damage, forcing him to be put on a ventilator and be fed through a tube in order to be kept alive. The appellants in this case were two doctors at Sunnybrook, who were responsible for Mr. Rasouli's treatment and care, and who - along with many other doctors - had concluded that he was in a permanent vegetative state. They had suggested to Ms. Rasouli's wife that they withdraw care and allow him to pass on; she refused in the hopes that he would recover. Due to this conflict, both the doctors and Ms. Rasouli's wife sought relief from the courts, she applying for orders to restrain the doctors and they cross-applying for declarations as to Mr. Rasouli's medical condition and that they did not require her condition to withhold care. The application judge found for Mr. Rasouli's wife.

The doctors appealed. Their argument was that the decision set a precedent that forces doctors to obtain consent of patients before withholding or withdrawing treatment they considered to be of no medical value. They made clear that they did not argue that doctors can do anything other than act in their patients' best interests; their argument was that the order effectively required them to provide treatment they believed to be medically ineffective or inappropriate. They also argued that "treatment," under the Health Care Consent Act, did not include the withholding or withdrawal of treatment that was of no medical value to the patient and could therefore be done without the patient's consent.

The Court of Appeal disagreed and dismissed the appeal. They first noted that, although the policy concerns of the decision were real, as the appellants had not raised the issue of resources being drained by intensive care units as a result of the decision, they would not consider fiscal issues in analyzing the decision. They then went to the Act and pointed out, as the application judge had, that the definition of "treatment" includes "a plan of treatment," and that a "plan of treatment" itself is defined to include withdrawal of treatment. Although the Court took pains to point out that they thought it unlikely that the legislature intended to protect treatment physicians considered to be of no medical value, and were willing to at least consider whether doctors were required to obtain consent to withdraw treatment in such circumstances, in this instance they declined to answer the question because they felt it unnecessary.

Justice Moldaver explained that palliative care certainly fell within the definition of "treatment" and therefore required the consent of the patient or his designated caregiver. They also noted that, by the appellants' own admission, no responsible medical practitioner would refuse to begin palliative care for a patient once he was removed from life-sustaining machinery or equipment. Therefore, although removing Mr. Rasouli from his ventilator and feeding tubes could possibly be construed as not being "treatment," the immediately following palliative care leading to his death must be considered treatment and therefore would require consent. Therefore consent was required, albeit not directly for the withdrawal of treatment, but required nonetheless. Read-the-whole-case rating: 3 for a decision that's a good example of the Court of Appeal taking pains to not rule on a contentious and divisive issue they feel is best left to the legislature.

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

Post a Comment