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Who will live and who will die?
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Who will live and who will die

“The abridged version of this blog was originally published by The Lawyer’s Daily (https://www.thelawyersdaily.ca/), part of Lexis Nexis Canada Inc. Part One was published on September 22, 2020. Part two was published on September 24, 2020.

Opposing counsel, Ron Bohm, was extremely effective in his responding submissions.  As I heard his arguments and saw the judge’s apparent receptiveness I feared the case was lost.  At issue was our respective clients’ arguments as to the validity of two different powers of attorney for personal care of a person I will refer to as (“Mr. G”).

Mr. G was at a nursing home.  There was a medical emergency requiring his immediate hospitalization.  His wife told the nursing home not to take Mr. G to hospital.  My client was visiting her father and called an ambulance.  The head nurse directed the ambulance driver to leave Mr. G alone.  My client pleaded for him to be taken to hospital.  Mr. G pleaded with the ambulance driver “I can’t breathe.  Take me to the hospital.”  The ambulance driver took him to the hospital and saved his life.  The question was what would happen when the next emergency took place.

My client claimed her power of attorney was the valid one and that she wanted all steps necessary to be taken to save her father’s life.  Mr. G’s wife claimed she had the valid power of attorney and wanted nature to take its course.  The nursing home refused to take the father back until a court ruled who was the valid attorney for personal care.  With the choice faced by the judge I am reminded of this case1  every Rosh Hashana.

This time of year is an emotional occasion for Jews.  Observant Jews believe it is a time for Divine judgment when the Master of the Universe decides who shall be inscribed in the Book of Life or Book of Death.  Observant Jews believe that names are written down on Rosh Hashana  – the Jewish new year and that there is still a chance for us to repent for 10 days until Yom Kippur – the day of the atonement.  There is a prayer Jews say on both Rosh Hashana and Yom Kippur called Unetanneh Tokef that is rooted in the above described belief.  The prayer, in part, reads:

“On Rosh Hashanah will be inscribed and on Yom Kippur will be sealed – how many will pass from the earth and how many will be created; who will live and who will die; who will die after a long life and who before his time…”

When making my submissions in the Bennett v. Gotlibowicz case, it was a very familiar Rosh Hashana feeling. I felt I was petitioning for Mr. G’s life.

I had an opportunity to make submissions in reply.  The judge was listening to opposing counsel and appeared to be persuaded by the effectiveness of his arguments. I thought the case was lost and recognized that the next time Mr. G might not be saved.  I thought of the Unetanneh Tokef and remembered my late father teaching me about the prayer and the sanctity of life.

My late father of blessed memory always reminded me that we have to fight for our health and to preserve life.  He quoted a biblical verse, וּבָֽחַרְתָּ֙ בַּֽחַיִּ֔ים   –  u’bacharta b’chaim2.  Literally that phrase means “choose life”.To be fair – in the actual context of the verse there was a different meaning, but the message was nonetheless relevant to me personally.

As a survivor of the holocaust who lost so many of his family my father appreciated how each life mattered and understood the precious nature of the gift.  I know it sounds crazy, but while listening to Mr. Bohm’s submissions in response I kept hearing my father’s voice yelling at me and saying u’bacharta b’chaim.  When Mr. Bohm finished it was my turn to present submissions in reply.

I had already made my legal arguments in my initial submissions.  There was no point in repeating my submission that Mr. G’s lawyer believed he had capacity and wanted my client to make decisions on his behalf. Or that given the conflicting evidence about capacity or validity of the different powers of attorney the court should exercise its discretion and adhere to the thesis statement of substitute decision cases –  that we should do what was in the best interests of the allegedly incapable person.  I also did not again argue about the court’s inherent jurisdiction.  Instead, in reply I told the court that this was a very difficult case and I felt badly for the judge who had to make this decision.  I beseeched her to pay heed to the words of my late father who taught me a biblical verse that when faced with a health decision and in doubt to remember the bible’s teaching u’bacharta bachaim – choose life.

The judge hearing the matter, Justice Herman, made a decision that reads in part as follows:

The paramount consideration must be the best interest of Mr. Gotlibowicz.  It is his best interest that the power of attorney be clarified, on an interim basis, so that he can return to Leisureworld and so that decisions can be made if necessary.  I cannot resolve the conflicting evidence with respect to Mr. Gotlibowicz’s capacity to appoint the applicants as his attorney on the basis of the evidence before me.  A further assessment will be done.  A question has been raised with respect to Mrs. Gotlibowicz’s capacity.  I make no finding as to her capacity.  However, the instruction that she gave last week not to take Mr. Gotlibowicz to the hospital would not appear to have been in his best interest and was contrary to what he wanted.  It is therefore in my opinion that it is in Mr. Gotlibowicz’s best interest that the power of attorney for personal care dated November 26, 2007 be confirmed as valid on an interim, without prejudice basis, until further order of the court or agreement between the parties.

If you search the Substitute Decisions Act3 (the “SDA”) you will not find any mention of a court having the jurisdiction to declare the validity of powers of attorney on an interim basis.  Arguably, absent specific wording in the Act the court does not have the jurisdiction to make a finding of interim validity.  This is the same type of argument some used to argue that absent the circumstances set out in s. 28 of the Estates Act (that being a will challenge), the court does not have jurisdiction to appoint an Estate Trustee During Litigation (ETDL).   The argument was dismissed in a host of cases4 including Mayer v. Rubin.5   As summarized in a case review on this case,6 Justice Myers stated something very relevant to our discussion:

“The court’s inherent jurisdiction exists in parallel with the court’s statutory powers. The court has broad and inherent powers to supervise the management of estates and to control its own processes. In part the court uses these powers to fill gaps where the legislature has not provided an answer such as when it is appropriate to appoint an officer of the court to preserve an estate at risk. The legislation is not a complete code.”

Arguably, the SDA is also not a complete code and the court has broad and inherent powers to supervise the management of an attorney’s choices for the personal care of the person under their charge; indeed, this responds directly to the court’s pre-exisiting parens patriae jurisdiction with respect to vulnerable people.7

There is no reason the court cannot use its inherent powers to fill in gaps where the SDA has not provided an answer.  I submit that is exactly what  happened in the Bennett v. Gotlibowicz case where it was unclear on the evidence before the court which power of attorney was the valid one. While she did not say so, I am presuming Her Honour relied on s. 68(4) of the SDA which provides that in a motion for directions “The court may by order give such directions as it considers to be for the benefit of the person and consistent with this Act.”

It is important to remember that judges are most often endeavouring to provide real solutions for the difficulties presented by the litigants before them. They have a discretion to use their best judgement to fill in gaps in the law.  In my view, that’s what happened in this case and the courts should not shy away from doing so.

I want to take this opportunity to wish all of my colleagues and friends a healthy happy new year.

Footnotes
  1.   Bennett v. Gotlibowicz, 2008 CarswellOnt 10810, 166 A.C.W.S. (3d) 167.
     
  2.   The quote is from verse 19 Chapter 30 of Deuteronomy / דברים.
     
  3.   Substitute Decisions Act, 1992, S.O. 1992, c. 30.
     
  4.   Kalman v. Pick, 2014 CarswellOnt 5584 (Ont. S.C.J.); McColl v. McColl, 2013 CarswellOnt 13589, 93 E.T.R. (3d) 116 (Ont. S.C.J.) and  Potrzebowski v Potrzebowski, 2016 ONSC 6981 (Ont. S.C.J.).
     
  5.   Mayer v. Rubin (2017), 2017 CarswellOnt 8889, 2017 ONSC 3498, 30 E.T.R. (4th) 239 (Ont. S.C.J.(Estates List)); additional reasons at Mayer v. Rubin (2017), 2017 CarswellOnt 10235, 30 E.T.R. (4th) 250 (Ont. S.C.J.(Estates List)) (Mayer v Rubin).
     
  6.   Charles Wagner and Gregory Sidlofsky, “Is section 28 of the Estates Act the sole authority for the appointment of an ETDL? A case comment on Mayer v. Rubin Volume 30 E.T.R. (4TH) 257”.  See https://www.wagnersidlofsky.com/wordpress/wp-content/uploads/Mayer-v-Rubin.pdf
     
  7.   An interesting legal question arises with respect whether the SDA has displaced the court’s traditional jurisdiction to deal with the mentally incapable; see the recent magisterial judgment of Green J. in A.A. (Re), 2019 NLCA 7 (N.L.C.A.). Here the Newfoundland Court of Appeal considered whether it retained such a power and ultimately held that it could issue a guardianship order outside any statute.
     

Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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