In the recent decision of Ferreira v. St. Mary’s General Hospital, the Ontario Court of Appeal held that a lawyer’s conduct seriously interfered with the administration of justice.
This appeal involved Ms. Masgras, a lawyer who purportedly brought the appeal on behalf of Mr. Ferreira, who had passed away before the appeal was brought. Ms. Masgras appealed the order of Associate Chief Justice Marrocco (the “reviewing judge”), which set aside an interim injunction that prohibited the removal of Mr. Ferreira from life support.
Mr. Masgras was retained by Mr. Ferreira with respect to his claims for compensation for injuries he sustained in a motor vehicle accident in December of 2016. On July 3, 2017, Mr. Ferreira suffered cardiac arrest and was transported to St. Mary’s General Hospital (the “Hospital”), where he was put on life support.
Due to a lack of oxygen to his brain, Mr. Ferreira suffered a significant brain injury. His condition continued to deteriorate and there was no prospect of recovery. Mr. Ferreira’s wife decided to remove him from life support. She did so in consultation with Mr. Ferreira’s physicians as well as his family members, who believed this was the right decision and not inconsistent with Mr. Ferreira’s wishes.
The Trillium Gift of Life agency (“TGOL”) was advised of Mr. Ferreira’s imminent death, which led to a decision by Mr. Ferreira’s family to offer organ donation. The withdrawal of life support was scheduled for the next day.
During this time, Ms. Masgras became aware of Mr. Ferreira’s condition and contacted Mr. Ferreira’s wife and other members of his family to urge them reconsider the decision to remove him from life support. The family did not change their minds.
Ms. Masgras, convinced that the decision of Mr. Ferreira’s removal from life support needed to be given “further consideration”, decided to bring an application for an interim injunction restraining the Hospital from withdrawing Mr. Ferreira from life support. The night before the scheduled withdrawal of life support, Ms. Masgras prepared the application materials and arranged to have them served on the Hospital. She did not serve Mr. Ferreira’s wife with the materials or advise her of the proposed application.
The next morning, Ms. Masgras attended at the Hospital and informed Dr. Hinkewich, Mr. Ferreira’s primary physician, that the application judge made a verbal order not to remove Mr. Ferreira from life support. The physicians from TFOL left and the family was informed of the development. They were later provided with the formal injunction order as well as copies of her application record.
Mr. Ferreira’s condition continued to deteriorate. If Mr. Ferreira went brain dead, harm to his organs preventing their donation was a real possibility. Accordingly, Dr. Hinkewich’s counsel brought a motion to vary the injunction order, which was heard the same day by telephone. Ms. Masgras and counsel for the Hospital and Dr. Hinkewich participated. During the hearing, the Court was advised that Mr. Ferreira was declared brain dead. The reviewing judge set aside the interim injunction and dismissed the application. Mr. Ferreira was removed from life support and he passed away.
Ms. Masgras appealed from the order of the reviewing judge. Her notice of appeal included an order that Ms. Masgras “had standing in the matter of whether Mr. Ferreira’s life support system should be maintained or removed.”
The Court of Appeal found that Ms. Masgras’ appeal could not succeed. Specifically, Ms. Masgras had no instructions to bring the application. In addition, the application was stayed as a result of Mr. Ferreira’s death pursuant to rule 11.01 of the Rules of Civil Procedure, unless and until an order to continue is granted under rule 11.02 (which was never obtained in this case). As such, the right to bring the appeal vested in the Estate Trustee of Mr. Ferreira’s estate. The Court also added, in the alternative, that the application was commenced without Mr. Ferreira’s authorization and therefore must be dismissed pursuant to rule 15.02(4).
In any event, the Court found that the appeal is now moot since Mr. Ferreira is deceased.
Issue of Costs:
On November 28, 2017, the application judge application judge awarded costs of $7,500 to each of the respondents, payable by Ms. Masgras personally. The Court of Appeal cited the applications judge at para. 29:
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.
Ms. Masgras appealed the costs order made against her personally. She submitted that she was entitled to take the steps that she did in obtaining the interim injunction, and then opposing the motion to set aside that order, and indeed then bringing an appeal, on the basis that she was obliged as Mr. Ferreira’s personal injury lawyer in a separate matter, to protect his interests and further “his cause”.
While the Court found that Ms. Masgras had no authority to commence the application and the appeal, she did have a right to appeal the costs ordered against her personally.
The Court found Ms. Masgras had no authority to take the steps that she did and her actions “seriously interfered with the administration of justice.” In reaching its decision, the Court states:
Ms. Masgras appears not to understand the fundamental principle that lawyers must act in accordance with the instructions of their clients. Lawyers do not have a carte blanche to take steps of their own volition under the guise of furthering the client’s perceived cause. In particular, lawyers do not have the right to institute proceedings without being armed with instructions from their clients to do so.
The Court also noted that an order awarding the respondents costs on a full indemnity basis would have been justified in these circumstances. Ms. Masgras was ordered to personally pay the costs of the respondents on a substantial indemnity basis. The costs of the Hospital were fixed at $19,885.74 and the costs of Dr. Hinkewich were fixed at $11,642.00.
 Ferreira v. St. Mary’s General Hospital, 2018 ONCA 247, para. 19 [Ferreira].
 Ferreira, paras. 31 and 35.
 Ferreira, para. 30.