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Emergency No Excuse for Lawyer’s Conduct

“People make just as many mistakes when the stakes go up, maybe more.” This quote, attributed to Richard Thaler, certainly rang true in a recent case out of Kitchener. The facts were straightforward. Mr. Fernando Ferreira (“Mr. Ferreira”) was involved in a car accident on December 17, 2016, and subsequently retained Georgiana Masgras (“Ms. Masgras”) to represent him in a personal injury lawsuit. On July 3, 2017, Mr. Ferreira suffered a heart attack and was hospitalized at St. Mary’s Hospital (the “Hospital”). He was put on life support and his treating doctors determined there was no possibility of meaningful recovery. A recommendation was made to withdraw life support and Mr. Ferreira’s family agreed.

This dramatic situation took a most unusual turn on July 7, 2017, when Ms. Masgras brought an emergency application on Mr. Ferreira’s behalf to enjoin St. Mary’s Hospital from withdrawing life support. On the morning of July 8, 2017, Justice Arrell granted the order ex parte and directed that a hearing take place several days later before Justice Marrocco on notice to the Hospital and Mr. Ferreira’s wife. The subsequent hearing did not go well for Ms. Masgras and an order was made rescinding the Order of Justice Arrell. Life support was subsequently withdrawn and Mr. Ferreira passed away.

The Hospital and Mr. Ferriera’s treating physicians then returned to Justice Arrell and requested that their legal costs be paid by Ms. Masgras personally. Their arguments included the following:

  • Masgras did not have instructions on behalf of Mr. Ferreira or his family to bring the application.
  • The affidavit evidence relied on by Ms. Masgras was inaccurate and misleading. For example, it stated that Mr. Ferreira was in intensive care because he had lost his memory when in fact he had suffered a severe hypoxic brain injury. It further stated that Mr. Ferreira’s family would not allow him to continue living because he had lost his memory. In fact, his family consented to the withdrawal of life support because they were aware that Mr. Ferreira would not want prolonged life support and that he wanted his organs to be donated.
  • Masgras improperly named the Hospital as a respondent even though Mr. Ferreira’s treating physicians, with whom Ms. Masgras disagreed, were not employees of the Hospital.

Justice Arrell was evidently unimpressed with the tactics employed by Ms. Masgras and concluded as follows:

I am satisfied that the Respondents incurred costs needlessly as set out in Rule 57.07(1) as a result of the inappropriate application brought by Ms. Masgras who had no instructions, submitted misleading material to the court, and was at the very least negligent or mistaken in her preparation of the material submitted to me. Her conduct is in my view worthy of sanction and falls within Rule 57.07(1) and the case law. She interfered in a dynamic and very personal family decision without any authority and submitted misleading material to the court.

In the result, Justice Arrell ordered Ms. Masgras to personally pay costs of $15,000. The decision cites a previous decision from Alberta which contains the following memorable quote:

I reject that ‘litigating from one’s heart’ is any defence to a potential costs award vs a lawyer, of for that matter from any other sanction potentially faced by a lawyer. Lawyers are not actors, orators, or musicians, whose task is to convey and elicit emotions. They are highly trained technicians within a domain called law. A perceived injustice is no basis to abuse the court, breach one’s oath of office, or your duties as a court officer.

Link to the decision on CanLii

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