Friday, July 22, 2011

This Week At The Ontario Court of Appeal: 11-07-22

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

Aguas v. Rivard Estate. A personal injury case where the appellant, Ms. Aguas, was suing the estate of Mr. Rivard for damages arising from a motor vehicle accident involving both herself and the late Mr. Rivard in 2001. The Registrar issued an administrative dismissal of the action in 2007 due to what it considered inexplicable litigation delay, as within two years of the filing of the statement of defence Ms. Aguas had neither set the matter down for trial or obtained an order following a status hearing to prevent administrative dismissal. Ms. Aguas brought a motion to set aside the dismissal.

The motion judge refused to set aside the dismissal, stating that Ms. Aguas had not brought "any reason whatsoever" as to why the matter had progressed so slowly; he also noted that, despite an eight-month delay in the proceedings having been caused by an order of dismissal being sent to the wrong solicitor, that the 17-month delay afterward was not adequately explained.

The Court of Appeal allowed the appeal and set aside the dismissal. They noted that discoveries had been held prior to the dismisal of the action, and that a second accident where Ms. Aguas has been involved and subsequently launched a separate civil suit had both impacted and complicated the original action. They also noted that the motion judge had characterized counsel's failure to respond to a letter advising them of the dismissal as negligence in file management rather than inadvertence, but the Court held that given Ms. Aguas' change in lawyers this was not a fair characterization. The Court finally pointed out that the respondents' conduct and conduct of their counsel did not support actual prejudice or reliance on finality.

Justice Juriansz dissented in the decision. He suggested that Justice Rosenberg, authoring the decision, had taken a fresh view of facts by recognizing that the respondents had realized that counsel for the appellant had erred, which was information not available to the motion judge. He concluded the fact that discoveries were conducted was not enough to prevent a finding of litigation delay given a 20-month delay from the appellant's discovery to its continuation. He further concluded that the argument that the second accident complicated matters was not for the Court to consider as it had not been advanced at the motion hearing, and was of the view that the appellants did not sufficiently demonstrate how the second accident had impacted the first action to accept it as a consideration. For these reasons he concluded the Court had not given the motion judge's decision sufficient deference. Read-the-whole-case rating: 2.

Rondel v. Robinson Estate. Dr. Rondel and the late Ms. Robinson had been friends prior to, late in Ms. Robinson's life, having a relationship together. This happened while Ms. Robinson's husband - who was institionalized with Alzheimer's - was still alive. In 2002, Ms. Robinson drafted a will in her native Spain which was meant to deal with her European property, which alloted her property (both real property and monies) in Europe to her sisters and further left a life interest in a London apartment to Dr. Rondel. This will made clear that a second will existed for property outside of Europe. In 2005, Ms. Robinson's husband died, and she instructed her solicitor to draft a new, third will dealing with "the entire residue" of her estate, which made no reference to the European property will and notably left nothing to her sisters. Finally, shortly after learning that she had an inoperable brain tumour in 2006, she contacted her solicitor again and requested that her third will be redrafted to leave Dr. Rondel a bequest of $1 million.

She died approximately three months later, and her lawyer, acting as executor, began distributing the contents of her Canadian assets in accordance with her final will, unaware that Ms. Robinson had had European assets or had drafted a will specifically dealing with those assets. Her lawyer learned of the Spanish will only when he was alerted that the English courts would not allow the Spanish will to come to probate if the Canadian will was not rectified to make clear that it had not been revoked. Dr. Rondel and the lawyer then brought applications firstly for advice and direction regarding interpretation of the will, and secondly for an order deleting the revocation clause and adding the phrase "other than property dealt with by [the Spanish will]" to the general disposition clause. The applications were supported by affidavits which restated that Ms. Robinson never intended to revoke her Spanish will. However, the application judge followed the common law, which states that evidence of testator's mistake alone is not sufficient for a court to rectify a will when there is no evidence of ambuiguity or drafting error. Dr. Rondel and Ms. Robinson's lawyer both appealed their applications.

The Court of Appeal dismissed the appeals. They noted that the application judge had stated "If a testator’s intent could be determined simply by third party affidavits, I would find, based primarily on Dr. Rondel’s affidavit, that the testator never intended to revoke the Spanish Will," then stressed the "if" and the "would" to point out that the application judge had not made a choice to not do so but instead had merely stated a hypothetical possibility for the purpose of illustrating his larger point that he was unable to do so. The Court concluded that the affidavits made Ms. Robinson's purpose clear: she had requested that her new will deal with "the entire residue of [her] estate" and had reviewed and approved the will before signing it.

For good reasons, stated the Court, the evidence of disappointed beneficiaries and third parties is not and cannot be as probative of testator's intentions as their own clear directions in their wills. Read-the-whole-case rating: 3. A good explanation of why estate law works the way it does in this instance.

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 followedKral 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. The Court 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 the Court found it unnecessary to do so.

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 would prefer to leave to the Legislature.
- Christopher Bird, Toronto

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